Taber and Taber - [2014] FCCA 11

FEDERAL CIRCUIT COURT OF AUSTRALIA

TABER & TABER

[2014] FCCA 11

Catchwords:
FAMILY LAW – Parenting orders – Mother wishes to relocate with child – Father reuses to communicate with Mother – whether it is in child’s best interests to order sole parental responsibility.

Legislation:

Family Law Act 1975, ss.11F, 60CA, 60CC, Part VII, 61DA, 65DAA

Commonwealth of Australia Constitution Act, ss.79, 80, 109

Hall & Hall (1979) FLC 90-713
Friscioni & Friscioni [2010] FamCAFC 108
Hannigan & Sorraw [2010] FamCAFC 257
Vigano & Latimer [2010] FMCAfam 660
Mazorski & Allbright [2007] FamCA 520
Godfrey & Sanders [2007] FamCA 102
McCall & Clark [2007] FamCA 92
Tait & Densmore [2007] FamCA 1383
G & C [2006] FamCA 994
Champness & Hanson [2009] FamCAFC 96

Applicant:

MS TABER

Respondent:

MR TABER

File Number:

DGC 504 of 2009

Judgment of:

Judge Jones

Hearing date:

16 December 2013

Date of Last Submission:

16 December 2013

Delivered at:

Melbourne

Delivered on:

10 January 2014

REPRESENTATION

Counsel for the Applicant:

Ms Bonney

Solicitors for the Applicant:

Moores Legal Pty Ltd

Respondent appearing in person

Counsel for the Independent Children's Lawyer:

Ms McCreadie

Solicitors for the Independent Children's Lawyer:

Bowlen Dunstan & Associates

ORDERS

Paragraph 2, so far as it concerns [X], born [in] 2001 (“the child”), and paragraphs 4 and 6, of the Orders made by consent on 22 December 2010 are discharged,
The child shall live with the Mother.
The Mother shall be permitted to relocate with the child to [L], Victoria
The Mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child.
The Father shall communicate and spend time with the child:
(a)During the school term, each third weekend from 6.00pm on Friday to 6.00pm on Sunday;
(b)Subject to order (5)(C), during school holidays, for half of each holiday being the second half in even numbered years commencing at 12 noon on the first day of the half period and ending at 4.00pm on the last Sunday proceeding the first day of the next school term and being the first half in odd numbered years, commencing at 6.00pm on the last day of the school term day and ending at 4.00pm on the last day of the half period; and
(c)Should the relevant holiday period be an odd number of days, the Father’s time be extended by one day at the commencement of time spent with him; and
(d)Both parents have liberal Skype, telephone, SMS text message and email communication with the child when she is living with or spending time with the other parent and, in default of agreement by Skype or smart phone on Tuesday and Thursday between 5.00pm and 6.00pm.
The Father is to collect the child from the Mother’s residence at the commencement of time spent with the Father, and the Mother or Mr A is to collect the child from the Father’s residence at 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 Taber and Taber

Details

AGLC: Taber and Taber [2014] FCCA 11
Case: [2014] FCCA 11
Decision Date: 10 January 2014

CaseChat Overview and Summary

In the matter of *Taber and Taber*, Judge Jones considered an application to vary existing consent orders concerning the parenting arrangements for a child, [X], born in 2001. The original orders, made by consent on 22 December 2010, were sought to be discharged and replaced with new arrangements.

The court was required to determine the best interests of the child, [X], in light of the proposed changes to living arrangements, parental responsibility, and the father's time with the child. Specifically, the court had to consider the mother's application to relocate with the child to [L], Victoria, and to be granted sole parental responsibility for all major long-term issues concerning the child. The court also had to establish new communication and time arrangements between the father and the child, as well as address provisions for the child's health, education, and the parties' participation in therapy and counselling.

Judge Jones discharged specific paragraphs of the previous consent orders and made new orders reflecting a significant shift in the parenting arrangements. The child was ordered to live with the mother, who was permitted to relocate with the child to [L], Victoria. The mother was granted sole parental responsibility for all major long-term issues concerning the child. The father's time with the child was detailed, including specific arrangements for school terms and holidays, and liberal communication via electronic means was also ordered. Further orders mandated the parties to attend family therapy and individual counselling, and the Independent Children's Lawyer was discharged, save for costs. The court also included particulars of obligations and consequences of contravention pursuant to section 65DA(2) of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

Paragraph 2, so far as it concerns [X], born [in] 2001 (“the child”), and paragraphs 4 and 6, of the Orders made by consent on 22 December 2010 are discharged,

The child shall live with the Mother.

The Mother shall be permitted to relocate with the child to [L], Victoria

The Mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child.

The Father shall communicate and spend time with the child:

(a) During the school term, each third weekend from 6.00pm on Friday to 6.00pm on Sunday;

(b) Subject to order (5)(C), during school holidays, for half of each holiday being the second half in even numbered years commencing at 12 noon on the first day of the half period and ending at 4.00pm on the last Sunday proceeding the first day of the next school term and being the first half in odd numbered years, commencing at 6.00pm on the last day of the school term day and ending at 4.00pm on the last day of the half period; and

(c) Should the relevant holiday period be an odd number of days, the Father’s time be extended by one day at the commencement of time spent with him; and

(d) Both parents have liberal Skype, telephone, SMS text message and email communication with the child when she is living with or spending time with the other parent and, in default of agreement by Skype or smart phone on Tuesday and Thursday between 5.00pm and 6.00pm.

The Father is to collect the child from the Mother’s residence at the commencement of time spent with the Father, and the Mother or Mr A is to collect the child from the Father’s residence at the conclusion of time spent with the Father.

The Mother shall notify the Father as soon as practical of any significant injury suffered by the child and within seven (7) days of the date hereof notify the Father in writing of the name and address of any doctor or allied health worker who treats or provides services to the child and authorise those doctors and allied health workers to provide information to the Father at his request (and his own expense) about the child’s treatment and care.

The Father be authorised (at his own expense) to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited or usually attend.

Within seven (7) days of the date of these Orders the parties are to do all things necessary for each of the Mother and Father, [X] and the children, [A], born [in] 1994 and [B], born [in] 1997, to attend family therapy with Dr M at the dates and times specified by Dr M. The Mother is to provide Dr M, 7 days prior to the first appointment a copy of Ms F’s Family Report dated 10 December 2013 and a copy of this decision.

10.

Within seven (7) days of the date of these Orders the parties are to do all things necessary to attend individual counselling to address unresolved relationship issues and to strengthen their parenting capacity at the dates and times specified by counsellor. Each party is to provide the counsellor 7 days before the first appointment a copy of

Ms F’s Family Report dated 10 December 2013 and a copy of this decision.

11.

The Independent Children’s Lawyer is discharged save for any argument in respect of costs.

12.

Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.

13.

That all extant applications are otherwise dismissed and removed from the Pending Cases List.

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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