TATTON & TATTON (No.2)

Case [2018] FCCA 2395


FEDERAL CIRCUIT COURT OF AUSTRALIA

TATTON & TATTON (No.2) [2018] FCCA 2395
Catchwords:
FAMILY LAW – Competing applications for final parenting orders in respect of children aged 13, 12, 10 & 9 – parties originally lived on northern outskirts of Adelaide – mother moved with children unilaterally to provincial township 140 kilometres away – issues of relocation – presumption of equal shared parental responsibility – issues of family violence – views of children – high conflict – section 60CC factors – best interests.
Legislation:
Family Law Act 1975, ss.4AB; 60B; 60CA; 60CC; 61DA; 64B; 65C; 65D(1); 65DAA; 65DAE; 65DAC
Evidence Act 1995 (Cth), s.140

Cases cited:

Tatton & Tatton [2017] FCCA 3409
B v B [2006] FamCA 1207
Fox v Percy (2003) 214 CLR 118
U v U (2002) FLC 93,112
Amador & Amador (2009) 43 Fam LR 268
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461

C & S [1998] FamCA 66

AMS v AIF; AIF v AMS (1999) FLC 92-852
Morgan & Miles [2007] FamCA 1230
McCall & Clark (2009) FLC 93-405
Godfrey v Saunders 2008 FLR 287
Mazorski v Albright (2007) 37 FamLR 518
Fragomelli & Fragomelli (1993) FLC 92-393
Adamson & Adamson (2014) FLC 93-622
Sampson & Hartnett (No 10) (2007) FLC 93-350
Bartel & Schmucker (No 3) [2012] FamCA 1094
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712
Bright v Bright (1995) FLC 92-570

Applicant: MS TATTON
Respondent: MR TATTON
File Number: ADC 172 of 2017
Judgment of: Judge Brown
Hearing dates: 17 & 18 May 2018
Date of Last Submission: 18 May 2018
Delivered at: Adelaide
Delivered on: 7 September 2018

REPRESENTATION

Counsel for the Applicant: In person
Solicitors for the Applicant: Not applicable
Counsel for the Respondent: Mr Anderson
Solicitors for the Respondent: Camatta Lempens Pty Ltd

ORDERS

  1. The parties to these proceedings Ms Tatton (hereinafter referred to as “the mother”) and Mr Tatton (hereinafter referred to as “the father”) be conferred with equal shared parental responsibility for the children of the marriage [W] born 2004, [X] born 2006, [Y] born 2008 and [Z] born 2010 (hereinafter the children [X], [Y] and [Z] are referred to collectively as “the children”).

  2. The living arrangements of the child [W] be as she wishes and she be able to spend time with her parents in accordance for the arrangements for her younger siblings, pursuant to these orders as she deems fit.

  3. In the event the mother elects to move her permanent residential address from Town A to a location within a radius of 10 kilometres of the parties’ former home located at Suburb E, no later than the start of the academic year in 2019, the children live with each of their parents, during school terms, on a week about basis, with the commencement of the weeks to be nominated by agreement, but failing agreement to be at the…

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Details
AGLC
TATTON & TATTON (No.2) [2018] FCCA 2395
Case
[2018] FCCA 2395
Decision Date

CaseChat Overview and Summary

The proceedings involved Ms Tatton and Mr Tatton, the parents of four children: [W], [X], [Y], and [Z]. The dispute concerned the parenting arrangements for the children. The decision was made by Brown J.

The court was required to determine the orders for the children's living arrangements, time spent with each parent, and parental responsibility, considering the presumption of equal shared parental responsibility under the *Family Law Act 1975*. The court also had to address the specific wishes of the eldest child, [W], and the potential impact of differing living arrangements on the younger siblings.

Brown J applied the principles of the *Family Law Act 1975*, particularly concerning the best interests of the children and the presumption of equal shared parental responsibility. The court acknowledged the love both parents have for their children and their aspirations for them, despite a history of suboptimal parenting. The decision recognised the difficulty in crafting orders that would satisfy all parties and avoid future litigation, given the poor parenting relationship between Ms Tatton and Mr Tatton. The court also considered the maturity and wishes of the children, especially [W], in making its determination.

The court made orders conferring equal shared parental responsibility on both parents. The living arrangements for [W] were to be as she wished, with her spending time with both parents. For the other children, the living arrangements were conditional on the mother's election to move within a 10-kilometre radius of the former family home. If she elected to move, the children would live with each parent on a week-about basis during school terms. If she did not move or did not move within that radius, the children would live with the father during school terms, with specific time arrangements for the mother. The orders also detailed arrangements for school holidays, special occasions, birthdays, and communication between parents regarding the children's health, education, and general well-being. Injunctions were granted restraining the removal of the children from South Australia and the Commonwealth of Australia without specific notice and consent. All other applications were dismissed.

Orders

Orders of the court

1.

The parties to these proceedings Ms Tatton (hereinafter referred to as “the mother”) and Mr Tatton (hereinafter referred to as “the father”) be conferred with equal shared parental responsibility for the children of the marriage [W] born 2004, [X] born 2006, [Y] born 2008 and [Z] born 2010 (hereinafter the children [X], [Y] and [Z] are referred to collectively as “the children”).

2.

The living arrangements of the child [W] be as she wishes and she be able to spend time with her parents in accordance for the arrangements for her younger siblings, pursuant to these orders as she deems fit.

3.

In the event the mother elects to move her permanent residential address from Town A to a location within a radius of 10 kilometres of the parties’ former home located at Suburb E, no later than the start of the academic year in 2019, the children live with each of their parents, during school terms, on a week about basis, with the commencement of the weeks to be nominated by agreement, but failing agreement to be at the conclusion of school each Friday and during each school holiday period and on special occasions in accordance with orders (5) & (6) hereunder.

4.

Pending the mother taking up the election contained in order (3) hereof and/or in the event she elects not to move from Town A and/or she elects not to move to live within a 10 kilometre radius of the former family home, the children live with the father from the commencement of term 4 of the 2018 academic school year and spend time with the mother, during school terms as follows:

(a) on alternate weekends from 5.00 pm Friday until 5.00 pm the following Sunday with the children to be exchanged between the parties at the BP Service Station at Town B or such other location as the parties agree from time to time;

(b) during school holidays and special occasions in accordance with orders (5) & (6) hereunder.

5.

The children spend equal periods of time with each of their parent, during each school holidays period as agreed between the parties and failing agreement with the father to have the second half of each such school holiday period in 2018 and each even ending year thereafter and the mother the other half in each such year and with the mother to have the second half in 2019 and each odd ending year thereafter and with the father to have the other half in each such year.

6.

The child spend time with each of their parents on special occasions as follows:

(a) At Easter at times to be agreed between the parties so that the children spend equal time with both of them during the period of Easter and failing agreement as follows:

(i) With the father from 3:30pm on Good Friday until 6:00pm on Easter Saturday in 2019 and each alternate year thereafter;

(ii) With the mother from 6:00pm on Easter Saturday until 9:00am on Easter Monday in 2019 and each alternate year thereafter.

(iii) With the mother from 3:30pm on Good Friday until 6:00pm on Easter Saturday in 2020 and each alternate year thereafter.

(iv) With the father from 6:00pm until 9:00am on Easter Monday in 2020 and each alternate year thereafter; and

(b) At Christmas time at times to be agreed between the parties so that the children spend equal time with both of them during Christmas and failing agreement as follows:

(i) With the father from midday on 24 December 2018 until midday on 25 December 2018 and each alternate year thereafter;

(ii) With the mother from midday on 25 December 2018 until midday on 26 December 2018 and each alternate year thereafter;

(iii) With the mother from midday on 24 December 2019 until midday on 25 December 2019 and each alternate year thereafter; and

(iv) With the father from midday on 25 December 2019 until midday on 26 December 2019 and each alternate year thereafter;

(c) On each of the children’s birthday so that the children spend at least three hours on their birthday with the parent who is not providing a residence for them on the occasion of their birthday at times to be agreed between the parties and failing agreement to be from 3:30pm until 6:30pm.

(d) In the event that Father’s Day falls on a weekend when the children are in the care of the mother the children will spend from 9:00am until 6:00pm with the father on Father’s Day.

(e) In the event that Mother’s Day falls on a weekend when the children are in the care of the father the children will spend from 9:00am until 6:00pm with the mother on Mother’s Day.

7.

Pursuant to section 65L of the Family Law Act 1975 the children attend upon Ms B at her rooms located at Suburb F on Friday, 14 September 2018 at 12:00pm in order to enable Ms B to explain to the children (including [W]) of the import and effect of these orders particularly the order which will enable [W] to live in the residence of her preference and other orders which will direct the other children to return to live in the area of Suburb E either with their father or equally with each of their parents depending on the mother’s election.

8.

All changeovers to occur as agreed between the parties and in default of agreement at the father’s place of residence other than the changeover arising as a consequence of order 4(a) hereof.

9.

In the event the children are suffering a medical condition or requiring medical attention while with either parent, that parent shall notify the other parent by text message as soon as is practicable such notification to include the details of the practitioner or medical facility upon which the children attend.

10.

The parties shall keep each other advised of medical appointments for the children and issues relating to the children’s health generally.

11.

The parents shall do all such things and sign all such documents as to ensure that all medical practitioners and medical facilities be advised that both parents shall have access to the child’s medical records and the information contained within them upon request.

12.

The parties shall keep each other advised of their landline and mobile telephone numbers and email addresses with each party notifying the other of any intended change within three (3) days of arrangements for the change being made.

13.

Each parent shall have the right to obtain copies of the said children’s school, academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own cost), fees and enrolment information and such information pertaining to the children’s school and school related sports activities.

14.

Each party has the right to attend at the children’s school for all events that are routinely attended by parents.

15.

The parties are directed to exchange proposals regarding which school the children are to attend for the remainder of the 2018 academic year and for their future education and failing agreement the children are to attend the closest public school to the former family home in Suburb E.

16.

The parties be at liberty to communicate with the children by telephone or video call at reasonable times as may be requested by the children.

17.

In addition to the above the parent who has the care of the children shall facilitate the other parent to be able to telephone the children each Tuesday and Thursday between 6:30pm and 7:30pm.

18.

The parties facilitate the children’s regular attendance at any extra-curricular activities which the parties have agreed that the children should attend.

19.

The parties be restrained and an injunction is hereby granted restraining them from removing the children from the State of South Australia without first providing, not less than twenty-one (21) days prior to the first date of travel, the following documents:

(a) An itinerary;

(b) Flight, bus and/or train numbers (if applicable);

(c) Contact telephone numbers

20.

The parties be restrained and an injunction is hereby granted restraining them from removing the children from the Commonwealth of Australia without the prior written consent of each of the parties. If such consent is given, the party taking the children out of the Commonwealth is to provide not less than twenty-eight (28) days prior to travel all relevant details including but not limited to copies of all:

(a) Airline and or train/bus tickets;

(b) Itineraries;

(c) Addresses; and

(d) Contact phone numbers for where the children will be and that may be used to contact the children throughout the trip.

21.

The parties shall use a communication book to inform one another of all issues relevant to the children including but not limited to issues such as the children’s physical needs, medical appointments and information, dietary needs and extra curricula activities, school events and achievements.

22.

All applications be otherwise dismissed.

Background

Background to the litigation

It is not my role to be unduly critical or censorious of anyone concerned in these proceedings. As I observed earlier, Ms Tatton’s life is one which has not always been easy. On the other hand, it is my impression that Mr Tatton, by temperament, is a calmer person. However, at the end of the day, both parties have much love to bestow upon [W], [X], [Y] and [Z]. In addition, as Ms B reports, they are each able to demonstrate this love to the children appropriately and they in turn respond to it. g) The children’s maturity, sex, lifestyle and background The parties share a similar background and have complimentary aspirations for their children. I bear in mind the ages of the children, particularly [W]. Otherwise, the matters which arise for consideration under this criterion are not generally applicable in the case. h) Aboriginality This is not a relevant consideration in the case. i) The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the parties As Ms A observed at an early stage in the proceedings, the parenting of the children concerned in this case has not always been optimal. However, when [X] suffered his life threatening anaphylaxis at school, the parties jointly agreed to home school their children. This was a very difficult and onerous decision to make and, in my view, is reflective of their dedication to the best interests of their children and their desire to ensure their safety. In these circumstances, I am satisfied that both parties aspire to be the best possible parents they can be for [W], [X], [Y] and [Z]. j) & k) Any family violence order I have already discussed issues to do with family violence at some length in respect of the primary considerations arising in this case. I not propose to issue those issues further. l) Whether it would be preferable to make the order that would be least likely to the institution of further proceedings Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation. The parties parenting relationship is poor and likely to remain so for the indefinite future, whatever order is made. This is not a good harbinger for the avoidance of future litigation between the parties in respect of the care of arrangements for the children. In addition, if an order is made for [W] to be able to determine with whom of her parents she prefers to live and she elects to live with Mr Tatton, whilst the other children remain in the care of their mother, this outcome is likely to be a significant pull factor which may lead to the other children wanting to follow their big sister and so further controversy between the parties. In all these circumstances, there is no neat package of orders available, which will satisfy all concerned. As such, one party will inevitably hard done by and this, of itself, will provide fertile ground for further litigation. Presumption of equal shared parental responsibility

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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