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 C & S [1998] FamCA 66 AMS v AIF; AIF v AMS (1999) FLC 92-852 |
| 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
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”).
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.
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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- AGLC
- TATTON & TATTON (No.2) [2018] FCCA 2395
- Case
- [2018] FCCA 2395
- Decision Date
CaseChat Overview and Summary
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
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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