Tatton and Tatton - [2017] FCCA 3409

FEDERAL CIRCUIT COURT OF AUSTRALIA

TATTON & TATTON

[2017] FCCA 3409

Catchwords:
FAMILY LAW – Interim arrangements for care of four children aged 12, 10, 8 & 7 – shared care – nature of interim hearing – relocation – meaningful level of relationship – mutual allegation of family violence – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4AB; 60CC; 60DA; 65DAA

Godfrey & Saunders (2007) FamCA 102
Mazorski & Albright [2007] FamCA 520

MRR v GR [2010] HCA 4

Applicant:

MS TATTON

Respondent:

MR TATTON

File Number:

ADC 172 of 2017

Judgment of:

Judge Brown

Hearing date:

2 March 2017

Date of Last Submission:

2 March 2017

Delivered at:

Adelaide

Delivered on:

2 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Boswell

Solicitors for the Applicant:

Rudall & Rudall

Counsel for the Respondent:

Mr Anderson

Solicitors for the Respondent:

Camatta Lempens Pty Ltd

ORDERS

UNTIL FUTHER ORDER, the children [W] born 2004, [X] born 2006, [Y] born 2008 and [Z] born 2010 live with the mother.
UNTIL FURTHER ORDER, the children spend time with the father as follows:
(a)Each week from 5.00 p.m. on Friday to 5.30 p.m. on Sunday;
(b)Such other times as may be agreed between the parties in writing.
Handovers occur as follows:
(a)At the Service Station at Town A;
(b)At such other location as may be agreed between the parties.
Notwithstanding paragraph 2 hereof, the children do spend time with each of the parties during the April 2017 school holiday period as follows:
(a)From 5.00 p.m. on Friday 14 April 2017 until 5.00 p.m. on Saturday 22 April 2017;
(b)With the mother at all other times NOTING THAT children’s time with the father pursuant to paragraph 2.1 hereof shall recommence on Friday 28 April 2017.
Should the father elect to do so, he may spend time with the child, [X], on 8 March 2017 being the occasion of [X]’s birthday from the conclusion of school to 6.00 p.m. provided that such time take place in Town B.
The father be permitted to speak to the children each Tuesday and Thursday at 7.00 p.m. with the father to contact the children via the mother’s mobile telephone for this purpose.
The parties do forthwith all things necessary to enrol the children and each of them at the Town B School and to record the father as an emergency contact and enrolling parent.
The parties be restrained and an injunction granted restraining each of them from:
(a)Discussing these proceedings with the children or allowing any other person to do so;
(b)Denigrating the other party to or in the presence of the children or allowing any other person to do so;
(c)Discussing current or future parenting arrangements with the children or allowing any other person to do so;
The father and mother do:
(a)Each be at liberty to consult with and obtain advice from the children’s medical or other treating practitioners;
(b)Notify the other parent of any medical appointments arranged for the children or either of them;
(c)Be…

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 Tatton and Tatton

Details

AGLC: Tatton and Tatton [2017] FCCA 3409
Case: [2017] FCCA 3409
Decision Date: 2 March 2017

CaseChat Overview and Summary

In the matter of Tatton and Tatton, heard before Judge Brown, the court considered orders concerning the living arrangements and time spent between the parents and their four children, born between 2004 and 2010. The dispute centred on the practicalities of the children's daily lives, their schooling, and the communication and conduct of the parents towards each other and the children.

The primary legal issues before the court were to determine the primary residence of the children, the schedule for their time with each parent, and to establish orders regarding communication, schooling, and the conduct of the parents to ensure the children's welfare. The court was also required to consider specific arrangements for school holidays and the father's ability to communicate with the children.

The court ordered that the children live with the mother until further order, with the father to spend time with them each weekend from Friday evening to Sunday afternoon, with handovers to occur at a specified service station. The court also made specific provisions for the April 2017 school holidays and permitted the father to spend time with one child on their birthday under certain conditions. Crucially, the court issued injunctions restraining both parents from discussing the proceedings or denigrating the other parent in the presence of the children, and from discussing parenting arrangements with them. Further orders addressed the enrolment of the children at a specific school, the exchange of information regarding medical appointments and school activities, and the use of a communication book at each handover. The matter was adjourned for further directions.

Orders

Orders of the court

UNTIL FUTHER ORDER, the children [W] born 2004, [X] born 2006, [Y] born 2008 and [Z] born 2010 live with the mother.

UNTIL FURTHER ORDER, the children spend time with the father as follows:

(a) Each week from 5.00 p.m. on Friday to 5.30 p.m. on Sunday;

(b) Such other times as may be agreed between the parties in writing.

Handovers occur as follows:

(a) At the Service Station at Town A;

(b) At such other location as may be agreed between the parties.

Notwithstanding paragraph 2 hereof, the children do spend time with each of the parties during the April 2017 school holiday period as follows:

(a) From 5.00 p.m. on Friday 14 April 2017 until 5.00 p.m. on Saturday 22 April 2017;

(b) With the mother at all other times NOTING THAT children’s time with the father pursuant to paragraph 2.1 hereof shall recommence on Friday 28 April 2017.

Should the father elect to do so, he may spend time with the child, [X], on 8 March 2017 being the occasion of [X]’s birthday from the conclusion of school to 6.00 p.m. provided that such time take place in Town B.

The father be permitted to speak to the children each Tuesday and Thursday at 7.00 p.m. with the father to contact the children via the mother’s mobile telephone for this purpose.

The parties do forthwith all things necessary to enrol the children and each of them at the Town B School and to record the father as an emergency contact and enrolling parent.

The parties be restrained and an injunction granted restraining each of them from:

(a) Discussing these proceedings with the children or allowing any other person to do so;

(b) Denigrating the other party to or in the presence of the children or allowing any other person to do so;

The father and mother do:

(a) Each be at liberty to consult with and obtain advice from the children’s medical or other treating practitioners;

(b) Notify the other parent of any medical appointments arranged for the children or either of them;

(c) Be at liberty to receive any and all information from any treating medical practitioner, health professional, therapist or counsellor upon who the child attends from time to time;

(d) Be at liberty to attend at all of the said children’s school functions and activities including parent/teacher nights, sports days, school concerts, excursions and any other events or activities to which parents are normally invited to participate and attend;

(e) Authorise any school at which the said children attend from time to time provide to the other parent at that parent’s sole expense of all things copies of all school newsletters, school reports, photographs and the like;

(f) Advise each other as soon as possible of any attendance the children have upon any medical practitioners including hospitals, and the parties do notify each other in the event of the children attending upon any medical practitioner for any emergency medical treatment as soon as reasonably practicable for them to do so;

(g) Exchange at each handover of the children a communication book with such book to record details relating to the care, welfare and development of the children.

10.

Further consideration of the matter is adjourned to 19 June 2017 at 9:30am for directions.

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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