Tansley and Cooper - [2016] FCCA 48

FEDERAL CIRCUIT COURT OF AUSTRALIA

TANSLEY & COOPER

[2016] FCCA 48

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – substantial and significant time – child’s schooling – one child aged 4 years 7 months – child due to commence school in 2016.

Legislation:

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

Cases cited:
Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Applicant:

MR TANSLEY

Respondent:

MS COOPER

File Number:

SYC 5786 of 2012

Judgment of:

Judge Scarlett

Hearing date:

13 July 2015

Date of Last Submission:

13 July 2015

Delivered at:

Sydney

Delivered on:

15 January 2016

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2011 in respect of all long term matters involving the care, welfare and development of the child.
When consulting each other in respect of long term matters involving the care, welfare or development of the child X the parties are to communicate their proposals in writing, which may include electronic means such as email or sms.
The Mother and father are to have sole parental responsibility for all decisions concerning the day to day care, welfare and development of the child X when the child is in their respective care.
The child X is to spend time with the Father during the school term as follows:
(a)Until the child attains the age of five (5) years:
(i)In the first week of each fortnight, from immediately after school on Friday afternoon until the commencement of school on the following Monday morning PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning; and
(ii)In the second week of each fortnight, from immediately after school on Thursday afternoon until the commencement of school on Friday morning; and
(b)Upon the child attaining the age of five (5) years until the child attains the age of twelve (12) years:
(i)In the first week of each fortnight, from immediately after school on Friday afternoon until the commencement of school on the following Monday morning PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning; and
(ii)In the second week of each fortnight, from immediately after school on Wednesday afternoon until the commencement of school on Friday morning; and
(c)Upon the child attaining the age of twelve (12) years:
(i)In the first week of each fortnight from immediately after school on the Friday afternoon until the commencement of school on the Tuesday morning; and
(ii)In the second week of each fortnight, from immediately after school on Wednesday afternoon until the commencement of school on Friday morning.
The child X is to spend time with the Father for the first half of the Autumn, Winter and Spring school holiday periods in…

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 Tansley and Cooper

Details

AGLC: Tansley and Cooper [2016] FCCA 48
Case: [2016] FCCA 48
Decision Date: 15 January 2016

CaseChat Overview and Summary

This matter concerned an application by the Applicant Father and Respondent Mother regarding the parenting arrangements for their child, X. The court was required to make orders concerning the child's care, welfare, and development.

The court was tasked with determining issues of parental responsibility, including equal shared parental responsibility for long-term matters and sole parental responsibility for day-to-day decisions. Further, the court had to establish specific time arrangements for the child to spend with each parent, including during school terms, school holidays, and on significant dates. The court also needed to address practical matters such as communication protocols, changeover arrangements, notification of emergencies, travel provisions, passport arrangements, and the child's schooling.

The court ordered equal shared parental responsibility for long-term matters, requiring written communication between the parents for such decisions. Sole parental responsibility for day-to-day matters was vested in the parent with whom the child was in care. Detailed time orders were made for the Father's time with the child, with provisions that adjusted as the child aged, covering school terms, school holidays, and specific annual events. The court also stipulated changeover locations, notification requirements for emergencies and address changes, and comprehensive procedures for interstate and international travel, including passport management and communication during overseas travel. Finally, orders were made regarding the child's enrolment in school, parental attendance at school events, and a restriction on relocating the child's residence from the Sydney Metropolitan Area.

Orders

Orders of the court

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2011 in respect of all long term matters involving the care, welfare and development of the child.

When consulting each other in respect of long term matters involving the care, welfare or development of the child X the parties are to communicate their proposals in writing, which may include electronic means such as email or sms.

The Mother and father are to have sole parental responsibility for all decisions concerning the day to day care, welfare and development of the child X when the child is in their respective care.

The child X is to spend time with the Father during the school term as follows:

(a) Until the child attains the age of five (5) years:

(i) In the first week of each fortnight, from immediately after school on Friday afternoon until the commencement of school on the following Monday morning PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning; and

(ii) In the second week of each fortnight, from immediately after school on Thursday afternoon until the commencement of school on Friday morning; and

(b) Upon the child attaining the age of five (5) years until the child attains the age of twelve (12) years:

(ii) In the second week of each fortnight, from immediately after school on Wednesday afternoon until the commencement of school on Friday morning; and

(i) In the first week of each fortnight from immediately after school on the Friday afternoon until the commencement of school on the Tuesday morning; and

(ii) In the second week of each fortnight, from immediately after school on Wednesday afternoon until the commencement of school on Friday morning.

The child X is to spend time with the Father for the first half of the Autumn, Winter and Spring school holiday periods in 2016 and all even numbered years thereafter and for the second half of the said school holiday periods in 2017 and all odd numbered years thereafter.

For the purposes of the immediately preceding Order:

(a) the school holiday period will be deemed to commence at 9:00am on the Saturday immediately after the last day of the school term and conclude at 5:00pm on the day immediately before the day that children are required to attend school for the commencement of the next school term; and

(b) the midpoint of the school holiday period will be 12:00 noon on the middle Saturday of the school holiday period.

The child X is to spend time with the Father during the Christmas/January school holiday period in each year as follows:

(a) Until such time as the child attains the age of twelve (12) years, for alternate weeks of the school holiday period commencing with the first week in 2016 and all even numbered years thereafter and the second week in 2017 and all odd numbered years thereafter; and

(b) Upon the child attaining the age of twelve (12) years, from 9:00am on 2 January until 5:00pm on 23 January in each year.

Notwithstanding the provisions of the immediately preceding Orders, the child X is to spend time with the Father:

(a) On the child’s birthday in each year from immediately after school until 7:30pm if the day falls on a school day or from 10:00 am to 2:00pm if the day falls on a weekend;

(b) On the Father’s birthday in each year from immediately after school until 7:30pm if the day falls on a school day or from 10:00am to 2:00pm if the day falls on a weekend;

(c) from 5:00pm on the Saturday immediately before Father’s Day until the commencement of school on the following Monday morning;

(d) from 10:00 am on Christmas Day until 10:00 am on Boxing Day in 2016 and all even numbered years thereafter and from 10:00 am on Christmas Eve until 10:00 am on Christmas Day in 2017 and all odd numbered years thereafter;

(e) from 10:00am on Easter Sunday until 10:00 am on the following Tuesday in 2016 and all even numbered years thereafter and from 10:00am on good Friday until 10:00am on Easter Sunday in 2017 and all odd numbered years thereafter; and

(f) at such other times as the parties may agree.

Notwithstanding the provisions of any preceding Order, the Father’s time with the child X is suspended:

(a) On the child’s birthday in each year if the child is not otherwise in the care of the Mother from 10:00am to 2:00pm if the day falls on a weekend;

(b) On the Mother’s birthday in each year if the child is not otherwise in the care of the Mother from immediately after school until 7:30pm if the day falls on a school day or from 10:00am to 2:00pm if the day falls on a weekend; and

(c) From 5:00pm on the Saturday immediately before Mother’s Day if the child is not otherwise in the care of the Mother until the commencement of school on the following Monday morning

10.

Changeover where the child goes from the care of one parent to the care of the other parent in accordance with these Orders is to take place at the child’s school if on a school day or otherwise at the McDonalds Family Restaurant in (omitted) at (omitted) as the case may be.

11.

The parents must notify each other as soon as possible in respect of any medical emergency, serious injury or illness involving the child when she is in their care.

12.

The parents must keep each other informed of their current residential address, landline and mobile telephone numbers and advise each other in writing of any change within 48 hours of such change occurring.

13.

If one parent wishes to travel with the child outside the State of New South Wales to another State or mainland Territory of Australia the travelling parent must provide to the other parent no later than fourteen (14) days prior to the date of intended travel an itinerary and contact details for where the child will be staying.

14.

If either parent wishes to travel with the child outside of the Commonwealth of Australia, then such parent (hereinafter referred to as “the Travelling Parent”) must provide to the other parent (hereinafter referred to as “the Remaining Parent”) not less than forty-two (42) days prior to the intended date of departure:

(a) A written notice to the Remaining Parent which shall state that they intend to travel outside of the Commonwealth of Australia with the child; and

(b) A full itinerary of their travel plans, including but not limited to the intended overseas residential address or addresses of the Travelling Parent and the child and the overseas contact telephone and facsimile numbers if applicable at that intended address or addresses.

15.

The Remaining Parent must inform the Travelling Parent in writing within fourteen (14) days of receipt of the written notice and itinerary referred to in the immediately preceding Order whether or not he or she consents to the Travelling Parent’s proposal to travel out of the Commonwealth of Australia with the child.

16.

The Travelling Parent shall deliver to the Remaining Parent not less than twenty-one (21) days prior to the intended date of departure a copy of the airline/ship tickets (or written confirmation from the airline, travel agent or shipping line) for both the Travelling Parent and the child for their departure from and return to the Commonwealth of Australia.

17.

Each parent must do all things and sign all documents necessary to apply for an Australian passport for the child or renew an existing Australian passport, as the case may be, no more than fourteen (14) days after the other parent requests him or her to do such things or sign such necessary documents.

18.

The parties are restrained by injunction from applying for any passport for the child other than an Australian passport.

19.

In the event that either parent intends to apply for the renewal of or a new passport for the child from the Australian Passport Office then such parent must advise the other parent in writing of that intention no later than fourteen (14) days prior to making that application.

20.

The child’s passport is to be held by the Mother who must provide the passport to the Father no later than fourteen (14) days prior to the Father’s intended date of travel with the child.

21.

The Father must return the child’s passport to the Mother no later than seven (7) days after returning to Australia with the child.

22.

Whilst the child is travelling outside Australia the Travelling Parent must do all things necessary to ensure that the child speaks to the Remaining Parent via Skype or Face Time or similar form of communication on at least two (2) occasions each week.

23.

The parents must do all things and sign all such documents as shall be necessary to enrol the child X at (omitted) Public School at (omitted) to commence school at the beginning of the first school term in 2016 PROVIDED THAT if the child is not able to secure a place at (omitted) Public School then the parents must do all such things and sign all such documents as shall be necessary to enrol the child at (omitted) Public School or, in the alternative, (omitted) Public School.

24.

Each parent will be entitled to attend all school and extra-curricular events involving the child, including but not limited to:

(a) Assemblies;

(b) Concerts;

(d) Other activities that allow for parental attendance.

25.

Each parent will be entitled to receive at their own expenses copies of all school newsletters, bulletins, information about school photographs and other items normally provided to parents of children attending that school.

26.

The parties are restrained from relocating the residence of the child X from the Sydney Metropolitan Area.

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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