STRINGER & NISSEN

Case [2019] FCCA 1159


FEDERAL CIRCUIT COURT OF AUSTRALIA

STRINGER & NISSEN [2019] FCCA 1159
Catchwords:
FAMILY LAW – Parenting – interim hearing – parental responsibility – whether the mother be permitted to relocate the child’s place of residence – allegations of family violence.

Legislation:

Family Law Act 1975 (Cth), ss.10J, 60B, 60CA, 60CC, 61DA, 65DAA, 67Q

Cases cited:

C and S [1998] FamCA 66

Goode & Goode (2006) FLC 93-286

Godfrey & Sanders [2007] FamCA 102

Mazorski & Albright [2007] FamCA 520

Morgan & Miles (2008) Fam LR 275

Marvel & Marvel (2010) 43 Fam LR 348

MRR v GR (2010) FLC 93-424

Deiter & Deiter [2011] FamCAFC 82

George & George [2013] FamCAFC 182

Eaby & Speelman (2015) FLC 93-654

Banks & Banks (2015) FLC 93-637

Bondelmonte & Bondelmonte (2017) FLC 93-763

Applicant: MS STRINGER
Respondent: MR NISSEN
File Number: SYC 1926 of 2019
Judgment of: Judge Morley
Hearing date: 4 April 2019
Date of Last Submission: 4 April 2019
Delivered at: Sydney
Delivered on: 5 April 2019

REPRESENTATION

Solicitors for the Applicant: Mr Hertz of John Hertz & Associates
Solicitors for the Respondent: Ms Naidoo of Legalworks

ORDERS

  1. That the parties have equal shared parental responsibility for the child [X], born … 2014 (“the child” or “[X]”).

  2. That in the event that the mother returns to live in the Town A Shire of New South Wales, then the mother’s solicitors will confirm to the father’s solicitors in writing that she is so residing, and within 72 hours of such notification, the father will deliver the child to the mother at the car park of the McDonald’s family restaurant at B Street, Town A, at a time arranged between them.

  3. That in the event that the mother lives in the Town A Shire of New South Wales, and in that event, following compliance by the parties with order 2:

    (a)The child will live with his mother;

    (b)The child will spend time with his father as follows:

    (i)Every Tuesday from 4 pm until Wednesday 4 pm;

    (ii)Each alternate weekend from Friday at 4 pm until Sunday at 4 pm;

    (c)On the child’s birthday and on the father’s birthday, if not already falling on a day on which the father is spending time with the child, for a period of three hours at a time to be agreed between the parties, and in default of agreement, from 4 pm until 7 pm.

    (d)On Father’s Day, if not already falling on time being spent between the father and the child, from 4 pm on the Saturday immediately preceding Father’s Day until 4 pm on Father’s Day.

    (e)From 4 pm on 24 December 2019 until 2 pm on 25 December 2019.

    (f)At other times as may be agreed between the parties.

    (g)By communication between the child and the father by video call/telephone call each Monday and Thursday when the child is not in the father’s care between 6.30 pm and 7 pm, to be facilitated by the father telephoning to the mother’s mobile telephone, and in…

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AGLC
Stringer and Nissen [2019] FCCA 1159
Case
[2019] FCCA 1159
Decision Date

CaseChat Overview and Summary

This matter concerned an interim hearing in family law proceedings between the mother and father regarding their child, [X]. The central dispute revolved around the mother's application to relocate the child's place of residence, with allegations of family violence also raised. Judge Morley presided over the hearing.

The court was required to determine the paramount issue of parental responsibility and whether the mother should be permitted to relocate the child. This involved considering the child's best interests in the context of the proposed move and the existing family violence allegations. The court also had to establish interim parenting arrangements that would apply depending on the mother's residential decision.

In reaching its decision, the court applied the principles of equal shared parental responsibility. It made orders that, in the event the mother returned to live within the Town A Shire, the child would live with her, with specific time arrangements for the father, including regular weekday and weekend contact, as well as provisions for birthdays and holidays. Crucially, the mother was restrained from relocating the child's primary residence away from the Town A Shire. Conversely, if the mother continued to reside outside the Shire, the child would live with the father, with defined periods of time spent with the mother, including monthly contact and holiday arrangements. The orders also included detailed provisions regarding communication, changeovers, notification of addresses and medical information, attendance at school functions, and safety measures concerning vehicle use, alcohol consumption, and child restraints. An independent children's lawyer was appointed, and the parties were directed to engage in family dispute resolution and a family consultant's report was ordered.

Orders

Orders of the court

1.

That the parties have equal shared parental responsibility for the child [X], born … 2014 (“the child” or “[X]”).

2.

That in the event that the mother returns to live in the Town A Shire of New South Wales, then the mother’s solicitors will confirm to the father’s solicitors in writing that she is so residing, and within 72 hours of such notification, the father will deliver the child to the mother at the car park of the McDonald’s family restaurant at B Street, Town A, at a time arranged between them.

3.

That in the event that the mother lives in the Town A Shire of New South Wales, and in that event, following compliance by the parties with order 2:

(a) The child will live with his mother;

(b) The child will spend time with his father as follows:

(i) Every Tuesday from 4 pm until Wednesday 4 pm;

(ii) Each alternate weekend from Friday at 4 pm until Sunday at 4 pm;

(c) On the child’s birthday and on the father’s birthday, if not already falling on a day on which the father is spending time with the child, for a period of three hours at a time to be agreed between the parties, and in default of agreement, from 4 pm until 7 pm.

(d) On Father’s Day, if not already falling on time being spent between the father and the child, from 4 pm on the Saturday immediately preceding Father’s Day until 4 pm on Father’s Day.

(e) From 4 pm on 24 December 2019 until 2 pm on 25 December 2019.

(f) At other times as may be agreed between the parties.

(g) By communication between the child and the father by video call/telephone call each Monday and Thursday when the child is not in the father’s care between 6.30 pm and 7 pm, to be facilitated by the father telephoning to the mother’s mobile telephone, and in this regard the mother is to ensure that the child is available to speak privately with the father.

(h) All changeovers in relation to the time spent by the father with the child will occur in the car park at the McDonald’s family restaurant at B Street, Town A.

4.

The mother is restrained from relocating the child’s primary place of residence away from the Town A Shire area of New South Wales.

5.

That in the event that the mother continues to reside outside the Town A Shire of New South Wales, then:

(a) The child will live with his father.

(b) The child will spend time with his mother from 12 noon on the first Monday of every month until 12 noon on the second Monday of every month, commencing 6 May 2019.

(c) The child will spend time with the mother on the child’s birthday and on the mother’s birthday, the time to be agreed between the parties and failing agreement between 4pm and 7pm;

(d) The child will spend time with the mother from 4pm on the Saturday preceding Mother's Day until 4 pm on Mother's Day;

(e) The child will spend time with the mother from 4pm on 24 December 2019 until 2pm on 25 December 2019;

(f) The child will spend time with the mother at all other times as may be agreed between the parties;

(g) The child shall communicate with the mother by telephone each Monday, Friday and Saturday when the child is not in the mother’s care between 6.30pm and 7pm to be facilitated by the mother telephoning the father’s mobile telephone, and the father is to ensure that the child is able to speak privately with the mother.

(h) For the purpose of changeovers, all such changeovers shall occur at the car park of the McDonald’s family restaurant in B Street, Town A.

6.

That each parent shall keep the other advised of their current residential address and contact telephone number, including landline if they have one, and advise the other parent of any change to these details within 48 hours of such change occurring.

7.

That each parent shall notify the other of any medical treatment to be received by the child and the name of the treating doctor as soon as practicable.

8.

That each parent shall be entitled to obtain directly from any health or welfare professional or any other professional attended by the child copies of any reports, notices, or other relevant verbal or written advice affecting the health or welfare of the child, and for this purpose each of the parents shall notify the other of the names and contact details of any relevant health or welfare professional attending the child.

9.

That each parent shall notify the other as soon as reasonably practicable of any emergency involving the child.

10.

That each parent is at liberty to attend all preschool functions and extracurricular activities in which the child is involved.

11.

That both parties are restrained from conveying the child in any vehicle unless they hold a valid driver’s licence for driving that vehicle. Both parties are to ensure that the child is not conveyed in any vehicle driven by a person other than a parent of the child who does not hold a valid driver’s licence for driving that vehicle.

12.

That the child is to be in a lawful child restraint whilst being conveyed in any vehicle.

13.

That both parties are restrained from consuming alcohol at all while the child is in that parent’s care, and for a period of 24 hours before the child comes into that parent’s care.

14.

All extant applications be adjourned to this Court on 26 June 2019 at 9:30am for directions.

15.

Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the date of the directions hearing will not be heard on that date without the express leave of Judge Morley, however directions in respect of that Application or Objection may be given.

16.

The matter is listed for further mention and directions consequent upon the release of the family report on 20 April 2020 at 9:30am.

17.

Pursuant to section 68L, an independent children’s lawyer is appointed for the reasons and with the ancillary orders as set out in the form that will be exhibit A to these orders.

18.

Pursuant to section 13C of the Family Law Act 1975, the parties and each of them will forthwith and within seven days contact a family dispute resolution practitioner agreed upon between them for the purpose of arranging and attending the first available and offered intake appointment for their assessment of suitability for further family dispute resolution, mediation, and subject to the assessment of suitability, each party shall then:

(a) attend at such times, dates and places as may be advised; and

(b) pay such fee as may be charged to participate in and complete family dispute resolution, mediation prior to the next Court event.

19.

Pursuant to section 62G, is a report is to be prepared for the Court by a family consultant nominated by the manager of Child Dispute Services in accordance with what will be Exhibit B to these orders.

20.

The Court notes that on the adjourn date of 26 June 2019 at 9.30 am, the Court requires the parties with legal representative, albeit as agent if necessary, to be present before the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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