Stuckey and Ferrier - [2019] FCCA 1844

FEDERAL CIRCUIT COURT OF AUSTRALIA

STUCKEY & FERRIER

[2019] FCCA 1844

Catchwords:
FAMILY LAW – Parenting – where and with whom a nine-year-old child should live – if with her mother, whether the mother should be forced to return from Town A to Melbourne – if with her father, how she should spend time with her mother.

Legislation:

Family Law Act 1975, ss.60B, 60CA. 60CC, 64B

Cases cited:

Mazorski v Albright (2008) 37 FLR 518

Tait & Dinsmore [2007] FamCA 1383

Applicant:

MR STUCKEY

Respondent:

MS FERRIER

File Number:

DGC 2227 of 2015

Judgment of:

Judge Small

Hearing dates:

12 & 13 July 2018 and 26 October 2018

Date of Last Submission:

26 October 2018

Delivered at:

Melbourne

Delivered on:

8 July 2019

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Mr Lovering

Solicitors for the Respondent:

Victoria Legal Aid

Counsel for the Independent Children’s Lawyer

Ms Burt (12 & 13 July 2019)

Ms Hamilton-Green (26 October 2019)

Solicitors for the Independent Children's Lawyer:

Creative Family Law Solutions

ORDERS

The parties shall have equal shared parental responsibility for the child [X] born … 2010 (“the child”), and, if after discussing the matter they cannot agree on any major issue to be decided, they shall attend Family Dispute Resolution and make a genuine effort to come to agreement.
In the event that the parties cannot agree on a major issue involving the child’s long term care, welfare and development after attending Family Dispute Resolution, then the mother shall have final responsibility for making the decision about that issue at that time.
The child shall live with the mother and the mother shall be at liberty to remain living in Town A.
Should the mother choose to relocate the child’s place of residence from Town A she shall relocate the child only to the Melbourne Metropolitan Area, and only to a suburb not further than 30 kilometres from the father’s home at that time, save that if the father should then move further than 30 kilometres away from the mother, the mother shall be permitted to remain where she is then residing.
The child shall spend time and communicate with the father as follows:
A.While the child remains living in Town A:
(a)   During school terms:
(i)For three weekends in each school term by agreement between the parties and failing agreement:
1.   on the Labor Day long weekend in March and the Queen’s Birthday long weekend in June each year, and on the second and seventh weekends of Terms 1 and 2 each year; and
2.   on the second, sixth and ninth weekends of terms 3 and 4;
such time to commence at the conclusion of school or 5:00 p.m. on Friday and to conclude at 5:00 p.m. on Sunday (or 5:00 p.m. on Monday if not a school day), with the father to advise the mother no later than three days prior to the commencement of time whether he will be collecting the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stuckey and Ferrier

Details

AGLC: Stuckey and Ferrier [2019] FCCA 1844
Case: [2019] FCCA 1844
Decision Date: 8 July 2019

CaseChat Overview and Summary

The case of Stuckey and Ferrier involved a dispute between the parents of a child, [X], concerning parenting arrangements. The matter came before Judge Small.

The court was required to determine the specific orders regarding the child's parental responsibility, residence, and time spent with each parent. Key issues included how major decisions would be made, where the child would live, and the detailed arrangements for the child's contact with the father, including during school terms, holidays, and special occasions. The court also had to consider provisions for communication, school-related matters, medical care, and injunctive relief to protect the child from parental conflict.

Judge Small made orders establishing equal shared parental responsibility, with the mother having final decision-making power on major issues if agreement could not be reached after family dispute resolution. The child was ordered to live with the mother, who was permitted to remain in Town A. However, if the mother chose to relocate, it had to be within the Melbourne Metropolitan Area, within 30 kilometres of the father's residence, with specific exceptions if the father moved further away. Detailed provisions were set out for the child's time with the father, both while living in Town A and if the child relocated to Melbourne, encompassing weekends, weekdays, school holidays, and specific public holidays. The orders also included provisions for changeovers, the father's access to school and medical information, and injunctions restraining the parents from denigrating each other or discussing the proceedings in the child's presence. Further orders mandated the mother to attend to her mental health with her general practitioner and potentially a psychiatrist.

Orders

Orders of the court

The parties shall have equal shared parental responsibility for the child [X] born … 2010 (“the child”), and, if after discussing the matter they cannot agree on any major issue to be decided, they shall attend Family Dispute Resolution and make a genuine effort to come to agreement.

In the event that the parties cannot agree on a major issue involving the child’s long term care, welfare and development after attending Family Dispute Resolution, then the mother shall have final responsibility for making the decision about that issue at that time.

The child shall live with the mother and the mother shall be at liberty to remain living in Town A.

Should the mother choose to relocate the child’s place of residence from Town A she shall relocate the child only to the Melbourne Metropolitan Area, and only to a suburb not further than 30 kilometres from the father’s home at that time, save that if the father should then move further than 30 kilometres away from the mother, the mother shall be permitted to remain where she is then residing.

The child shall spend time and communicate with the father as follows:

A. While the child remains living in Town A:

(a) During school terms:

(i) For three weekends in each school term by agreement between the parties and failing agreement:

1. on the Labor Day long weekend in March and the Queen’s Birthday long weekend in June each year, and on the second and seventh weekends of Terms 1 and 2 each year; and

2. on the second, sixth and ninth weekends of terms 3 and 4;

such time to commence at the conclusion of school or 5:00 p.m. on Friday and to conclude at 5:00 p.m. on Sunday (or 5:00 p.m. on Monday if not a school day), with the father to advise the mother no later than three days prior to the commencement of time whether he will be collecting the child from school at the conclusion of school, or from the McDonalds restaurant in Town U at 5:00 p.m. on the Friday;

(ii) By telephone, Skype, FaceTime or other electronic means at any time at the instigation of the child, and on Mondays and Thursdays, the child’s birthday and the father’s birthday between 6:30 p.m. and 7:00 p.m. at the instigation of the father, with the father to place the call to a device nominated by the mother, and the mother shall ensure that the child has access to a fully charged and working telephone, computer or tablet, that she is available to make or take the call, and that she is afforded privacy during the call;

(b) For ten days in each of the first and third term school holidays by agreement, and failing agreement, from 5:00 p.m. on the first Saturday to 5:00 p.m. on the second Tuesday in even numbered years and from 5:00 p.m. on the first Wednesday to 5:00 p.m. on the last Saturday in odd numbered years;

(c) In the second term school holidays from 5:00 p.m. on the first Saturday to 5:00 p.m. on the second Saturday in even numbered years, and from 5:00 p.m. on the second Saturday to 5:00 p.m. on the last Saturday in odd numbered years;

(d) For half the long summer holidays each year by agreement and failing agreement the first half in even numbered years and the second half in odd numbered years, and the holidays shall be deemed to commence at noon on the first Saturday and to conclude at noon on the last Saturday;

(e) From 5:00 p.m. on 26 December 2019 to 5:00 p.m. on 28 December 2019 and in each alternate year thereafter;

(f) From 5:00 p.m. on 24 December 2020 to 5:00 p.m. on 26 December 2020 and in each alternate year thereafter;

(g) At other times by agreement between the parties in writing.

B. Should the child be living in the Melbourne Metropolitan Area pursuant to the provisions of paragraph 4 hereof:

(a) During school terms:

(i) Each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday commencing on the second weekend after the mother relocates the child to the Melbourne Metropolitan Area;

(ii) Each alternate week from the conclusion of school to 7:00p.m. on Thursdays commencing on the first week after the mother relocates the child to the Melbourne Metropolitan Area ;

(iii) By telephone, Skype, FaceTime or other electronic means at any time at the instigation of the child, and on Mondays, Thursdays, between 6:30 p.m. and 7:00 p.m. at the instigation of the father, with the father to place the call to a device nominated by the mother, the mother to ensure that the child has access to a fully charged and working telephone, computer or tablet, that she is available to make or take the call, and that she is afforded privacy during the call;

(b) For half of all school term holidays by agreement between the parties and failing agreement from the conclusion of school on the last day of term to 5:00 p.m. on the second Saturday in even numbered years, and from 5:00 p.m. on the second Saturday to the commencement of the next school term in odd numbered years;

(c) For half the long summer holidays each year by agreement and failing agreement the first half in even numbered years and the second half in odd numbered years and the holidays shall be deemed to commence at noon on the first Saturday and to conclude at noon on the last Saturday;

(d) From 5:00 p.m. on Christmas Eve to noon on Christmas Day in even numbered years and from noon on Christmas Day to 5:00p.m. on Boxing Day in odd numbered years;

(e) From noon on the day before the child’s birthday to noon on the child’s birthday in even numbered years and from noon on the child’s birthday to noon on the day after the child’s birthday in odd numbered years;

(f) From the conclusion of school on the father’s birthday (or 3:30p.m. if not a school day,) to the commencement of school on the day after the father’s birthday (or 10:00 a.m. if not a school day) should the birthday fall on a school day, and from 2:00 p.m. to 8:00 p.m. should the birthday fall on a non-school day;

(g) At other times by agreement between the parties in writing.

Changeovers shall take place:

(a) while the child lives in Town A either at the child’s school should the father choose to collect her from school at the commencement of time, or at the McDonalds restaurant in Town U;

(b) should the child live in the Melbourne Metropolitan Area, changeovers which do not take place at the child’s school shall take place at the McDonalds restaurant closest to the midway point between the parties’ residences.

All time the father spends with the child pursuant to paragraphs 4.A.(a) and 4.B.(a) hereof shall suspend during school holidays and recommence after the holidays as if the holidays had not intervened.

The mother shall ensure that the child’s school makes available to the father, at the father’s expense if any, all school reports, photographs, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by the child, and the parents shall both be at liberty to attend parent-teacher interviews, at different times should they so choose, and all sporting or cultural events usually attended by parents.

The mother shall ensure that the child attends school on time on every school day, and if the child is absent for more than one school day because of illness or injury, she shall provide a medical certificate to the father within 48 hours setting out the specific nature of the child’s illness or injury and why it has prevented her from attending school.

10.

The mother shall keep the father informed of [X]’s school, usual treating general practitioner, any specialist medical practitioner and any counsellor or therapist upon whom she attends, and shall authorise all such medical and allied health practitioners to consult with the father about any treatment to be administered to the child.

11.

The parties shall each inform the other of any serious illness or injury suffered by the child which requires hospitalisation or specialist treatment while she is in their respective care, and they shall authorise any treating medical or allied practitioners who are treating the child to speak to the other parent about the child’s treatment.

12.

The parties shall each ensure that [X] takes any medication prescribed for her in compliance with its prescription while in their respective care.

13.

The parties and their servants and agents be and are hereby restrained by injunction from:

A. abusing, insulting, belittling, criticising, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child and from permitting any other person to do so;

B. discussing these proceedings with or in the presence or hearing of the child (save to explain any changes in her living circumstances to her) and from permitting any other person to do so; and

C. allowing the child to access, read, or have read to her, any portion of the Court’s Reasons for Judgment in this matter.

14.

The mother shall attend upon her general medical practitioner no less frequently than once every two months for the specific purpose of discussing the state of her mental health, and she shall comply with all treatment directions and referrals made by that practitioner.

15.

If so referred by her general medical practitioner, the mother shall consult and engage with a consultant psychiatrist for assessment and treatment until the psychiatrist deems such treatment is no longer necessary.

16.

The mother shall be at liberty to provide a copy of these Orders to any school attended by the child, to her general medical practitioner, and to any psychiatrist to whom she is referred.

17.

The Order of Judge Small, dated 13 December 2016 appointing the Independent Children’s Lawyer is hereby discharged.

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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