Sturton and Cellar (No 3) - [2020] FamCA 938

FAMILY COURT OF AUSTRALIA

STURTON & CELLAR (NO. 3)

[2020] FamCA 938

FAMILY LAW – CHILDREN – International Relocation – Where the mother seeks to return with the child to New Zealand – Where the father seeks that the mother remain living with the child in the area in which she currently resides and that the child spend gradually increasing time with him such that the child lives in an equal shared care arrangement once she commences school – Where the mother is the child’s primary caregiver and primary attachment – Where the mother has limited means of financially and emotionally supporting herself in Australia – Where the child has a good relationship with her father but the father has little real insight into her emotional and practical needs – Where the father has been rude, disrespectful and abusive to the mother – Where it is in the child’s best interests that she be permitted to relocate with her mother and spend time with her father in Australia and if he chooses to travel there, New Zealand.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother seeks sole parental responsibility and the father seeks equal shared parental responsibility – Where an order for equal shared parental responsibility is not appropriate – Where the mother will have sole parental responsibility, with an obligation to consult the father prior to making her decision.

Family Law Act 1975 (Cth)

Heath v Hemming (No 2) [2011] FamCA 749
U v U (2002) 211 CLR 238

APPLICANT:

Ms Sturton

RESPONDENT:

Mr Cellar

INDEPENDENT CHILDREN’S LAWYER:

Julie Harrington

FILE NUMBER:

BRC

6743

2018

DATE DELIVERED:

11 November 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

10, 11 & 12 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Oakley

SOLICITOR FOR THE APPLICANT:

Piper Craig Lawyers

THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harrington
Julie Harrington Solicitor

Orders

That all previous Orders and parenting plans be discharged.

Parental responsibility & where the child shall live

That the child, X born … 2017, (“the child”) shall live with the mother and the mother is permitted to relocate the child’s residence to New Zealand any time after the father is no longer living full-time in the B Region or after 1 January 2021, whichever is the earlier.
That the mother shall have sole parental responsibility for the child save for decisions about changing the child’s family name about which the father and the mother shall have equal shared parental responsibility.
That when the mother is considering making a decision in relation to a “major long-term issue” in respect of the child (as that term is defined in s 4 of the Family Law Act 1975 (Cth)), save for decisions about changing the child’s family name, the mother shall inform the father in writing of that and seek his views as to the decision to be made and, although she…

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 Sturton and Cellar (No 3)

Details

AGLC: Sturton and Cellar (No 3) [2020] FamCA 938
Case: [2020] FamCA 938
Decision Date: 11 November 2020

CaseChat Overview and Summary

The case involved a mother seeking to relocate with her child to New Zealand, while the father sought for the child to remain in Australia with gradually increasing time spent with him, ultimately aiming for equal shared care. The mother was the child's primary caregiver and attachment figure, with limited financial and emotional support in Australia. While the child had a good relationship with her father, he reportedly lacked insight into her needs and had exhibited disrespectful and abusive behaviour towards the mother.

The court was required to determine the child's primary residence and the extent of parental responsibility each parent would hold. A key issue was whether international relocation to New Zealand was in the child's best interests, considering the existing parental dynamics and the child's relationship with both parents. The court also had to consider the father's request for equal shared parental responsibility against the mother's claim for sole parental responsibility.

Forrest J found that it was in the child's best interests to permit the relocation to New Zealand with the mother, while also facilitating time with the father in Australia and, if he chose, in New Zealand. The court determined that an order for equal shared parental responsibility was not appropriate in these circumstances. Instead, the mother was granted sole parental responsibility, with an obligation to consult the father on major long-term decisions, excluding changes to the child's family name, for which they would share equal responsibility. The judgment detailed specific arrangements for the child's time with the father both before and after the relocation, including provisions for communication and information sharing between the parents.

Orders

Orders of the court

That all previous Orders and parenting plans be discharged.

Parental responsibility & where the child shall live

That the child, X born … 2017, (“the child”) shall live with the mother and the mother is permitted to relocate the child’s residence to New Zealand any time after the father is no longer living full-time in the B Region or after 1 January 2021, whichever is the earlier.

That the mother shall have sole parental responsibility for the child save for decisions about changing the child’s family name about which the father and the mother shall have equal shared parental responsibility.

That when the mother is considering making a decision in relation to a “major long-term issue” in respect of the child (as that term is defined in s 4 of the Family Law Act 1975 (Cth)), save for decisions about changing the child’s family name, the mother shall inform the father in writing of that and seek his views as to the decision to be made and, although she has the sole right to make the decision herself, she shall give due consideration to any views expressed by the father and when she has made any such decision she shall notify the father in writing of that decision within three (3) days of such decision being made, giving her reasons for making that decision at the same time.

The time the child shall spend with the father until she leaves to live in New Zealand

That the child shall spend time with the father at all reasonable times as may be agreed in writing between the parents, but in default of agreement, then as follows:

(a) from 4:00 pm on Fridays until 4:00 pm (Queensland time) on Sundays commencing on Friday, 13 November 2020 and then each alternate weekend thereafter;

(b) from 8:00 am to 4:00 pm (Queensland time) on Sunday, 22 November 2020 and each alternate Sunday thereafter;

(d) that save for each Tuesday, where the father shall collect the child at the commencement of her time with him from her childcare centre, H Childcare, all other transition of care for the child between the mother and the father shall take place, unless otherwise agreed in writing between the mother and the father, outside the F Town Post Office.

The time the child shall spend with the father after she leaves to live in New Zealand

That after the mother and the child have moved to New Zealand, then the child’s time with the father shall take place as follows:

Until the child starts school (once travel between the two countries is once again permitted without quarantine requirements)

(i) In the event that the father travels to New Zealand at his own expense and on the giving of three weeks’ notice in writing to the mother, during no more than one week in each four week period:

(a) from 9:00 am on day one of a week long period until 5:00 pm on day three, with the father to collect the child from the mother at the mother’s residence at the commencement of that time and return her to the mother’s residence at the end of that time;

(b) the child shall remain in the mother’s care for two nights after being returned by the father to the mother before the father can collect her again from the mother’s residence at 9:00 am on the fifth day of the same week long period having her in his care until 5:00 pm on the seventh day of that week long period when he shall return the child again to the mother’s care at the mother’s residence;

(c) the father shall inform the mother where he will be staying with the child for each of the nights she is in his care during that week;

(ii) The mother shall return the child to the B Region at her own expense for at least one whole week each four calendar months on the giving of four weeks’ notice in writing to the father, conditional on the father immediately responding and confirming that he will be available to spend time with the child as follows during that week:

(a) from 9:00 am on day one of a week long period until 5:00 pm on day three, with the mother to deliver the child to the father outside the F Town Post Office at the commencement of that time and the father to return the child to the mother at the same location at the end of that time;

(b) the child shall remain in the mother’s care for two nights after being returned by the father to the mother before the father can collect her again from the mother outside the F Town Post Office at 9:00 am on the fifth day of the same week long period, having her in his care until 5:00 pm on the seventh day of that week long period when he shall return the child again to the mother’s care outside the F Town Post Office;

(c) the father shall inform the mother where he will be staying with the child for each of the nights she is in his care during that week;

After the child starts school

(iii) In Australia:

(a) the mother shall return the child (at her expense and whether or not she travels with her or has her travel unaccompanied) to the B Region for three weeks during each of the New Zealand summer school holidays, for two weeks during the New Zealand winter school holidays and for one week during the New Zealand autumn school holidays each year with the three weeks of the summer school holidays to include Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve and New Year’s Day at the end of the first year the child starts school and in alternate years thereafter, otherwise to be weeks selected by the mother after consultation with the father, and with the week of the autumn school holidays to be the first week in the child’s first year of school and each alternate year thereafter and the second week in the other years;

(b) the father shall inform the mother where he will be staying with the child whilst she is in his care during those weeks;

(c) handovers of the child to the father and then back to the mother shall be as arranged and agreed upon by the parents in advance;

(d) the mother shall give the father as much notice in writing of the details of the arrangements to get the child to and from Australia for each of those trips, but not less than two months’ notice for the autumn and winter holidays and not less than three months’ notice for the summer holidays;

(e) the father may elect to have any of the school holiday periods provided for in this sub-paragraph for the child to be in his care in New Zealand instead of Australia (at his expense), provided he gives the mother notice of that intention before she has arranged the travel to Australia;

(iv) In New Zealand:

(a) in the event that the father travels to New Zealand (at his expense) and on the giving of four weeks’ notice in writing to the mother, during no more than one whole week during each school term, from 9:00 am on the first day of that whole week until 5:00 pm on the seventh day of that whole week with the father to ensure that the child attends school on each of the school days and with the father being entitled to attend at the school on any of those days as might be agreed between him and the administration of the school;

(b) as provided for in sub-paragraph 6(iii)(e) above;

(c) the father shall inform the mother where he will be staying with the child whilst she is in his care during any such weeks;

(d) handovers of the child to the father and then back to the mother shall be as arranged and agreed upon by the parents in advance.

That the child shall communicate with the father by Skype (or such other online digital video conferencing platform as the parents may agree upon) as follows:

(a) each Sunday, when the child is not in the father’s care, between 5.00 pm and 6.00 pm (New Zealand time);

(b) at such time as is agreed between the parents but, in default of agreement, between 5:00 pm and 6:00 pm (New Zealand time) on the following days:

(i) the child’s birthday;

(ii) the father’s birthday;

(iii) Australian Father’s Day;

(iv) Easter Sunday;

(v) Christmas Day;

with the father to make these calls and the mother to make the child available to take them.

That the child shall communicate with the mother when she is in the father’s care during school holidays (whether in Australia or New Zealand) by Skype (or such other online digital video conferencing platform as the parents may agree upon):

(a) each Sunday, when the child is not in the mother’s care at all that day, between 5.00 pm and 6.00 pm (New Zealand time); and

(b) on any of the following days that she is not in the mother’s care at all on the day:

(i) the child’s birthday;

(ii) the mother’s birthday;

(iii) Easter Sunday; and

(iv) Christmas Day;

at such time as is agreed between the parents but, in default of agreement, between 5:00 pm and 6:00 pm (Queensland time if the child is in Queensland) on those days, with the mother to make these calls and the father to make the child available to take them.

That the mother shall provide the father with:

(a) a written summary of information concerning the child once each fortnight and that summary shall include an update on the child’s schooling, health and any activities/sports the child is attending as well as photographs of the child; and

(b) after the child starts school, a copy of the child’s school reports when received.

10.

That each of the parents:

(a) shall not criticise or denigrate the other parent or the other parent’s partner or family to, or in the presence or hearing of, the child;

(b) shall encourage and not undermine the child’s relationships with the other parent;

(c) respect the privacy of the other parent and not question the child about the personal life of the other parent and shall speak of the other parent respectfully;

(d) shall refrain from discussing or permitting another person to discuss family law issues, any adult issues and/or any issues in dispute between them with the child;

(e) shall not show to the child any documents connected with these proceedings; and

(f) shall refrain from drinking alcohol to excess and from taking or being under the influence of any illicit drugs at any time the child is in his or her respective care.

11.

That each of the parents shall keep the other informed of a postal address, email address, contact telephone number and Skype address (or the details at which they can be reached on an otherwise agreed digital video conferencing platform) and shall advise the other of any change to the same within seven (7) days of such change occurring.

12.

That both parents are at liberty to attend and/or be involved in any extracurricular activity of the child or school event that parents are invited to attend.

13.

That the parents authorise, by this Order, the child care centre, school and/or after school care centre attended by the child, to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, newsletters, letters and general notices, photographs, certificates and awards obtained by the child (at the request parent’s cost, if any).

14.

That each parent shall inform the other, as soon as is practicably possible, in the event that the child experiences any serious illness or requires significant medical treatment, including any prescription medication whilst in their respective care and each parent shall ensure that prescription medication travels with the child to the other parent’s household at changeovers.

15.

That by this Order each parent authorise the other to obtain medical and health care information in relation to the child and authorises health, medical and education providers to discuss the child’s health and educational needs with each parent.

16.

That for the purposes of these Orders, save in the event of an emergency, the parents shall communicate by email.

17.

That at all reasonable times each parent shall facilitate any request made by the child for telephone contact with the other parent.

18.

That the process to be used for resolving disputes about the terms or operation of these Orders or future parenting matters shall be as follows:

(a) a parent shall notify the other parent in writing of the matter to be resolved;

(b) the other parent shall respond in writing within seven (7) days as to their agreement or otherwise;

(c) when agreement is reached which requires a change to these Orders then the parents will take steps to have their agreement formalised by way of a consent order;

(d) when agreement is not reached the parents shall consult with a Family Dispute Resolution practitioner or Family Relationships Centre to assist with resolving any dispute or reaching agreement about changes to be made;

(e) the parents shall pay the costs of the Family Dispute Resolution practitioner equally;

(f) in the event that they cannot agree on a Family Dispute Resolution practitioner:

(i) the father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;

(ii) the mother shall choose one of the listed practitioners within seven (7) days of receipt of the list;

(iii) if the mother fails to choose then the father may choose.

19.

That unless there are some emergent circumstances, before an application is made to a court for a variation of these Orders to take into account the changing needs of the child or otherwise, each party shall take the steps referred to in the preceding Order.

20.

That before the mother leaves Australia to travel to New Zealand with the child, she shall take all steps necessary to cause a copy of these parenting Orders to be registered as an overseas parenting order with the District Court of New Zealand pursuant to s 81 of the Care of Children Act 2004 (NZ) and she shall provide the father with evidence that these Orders have been so registered.

21.

That the Independent Children’s Lawyer is discharged.

22.

That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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