Thompson and Platt - [2015] FCCA 67

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMPSON & PLATT

[2015] FCCA 67

Catchwords:
FAMILY LAW – Parenting – highly conflicted relationship between the parties – short relationship with separation to all intents having occurred prior to the birth of the child – allegations by each parent of failures on the part of the other to act responsibly in relation to the parenting of the child – issues as to parental responsibility and whether presumption of equal shared parental responsibility is rebutted – determination that presumption is rebutted – consideration of objects and principles and factors required to be considered in relation to a determination of with whom the child should live – consideration of proposed relocation by the mother with the child and the significant effect upon the father’s relationship with the child – consideration of family report and evidence of family reporter, particularly with regard to the damaging effects upon the relationship of the father and child if relocation is allowed – consideration of mother’s capacity to foster a relationship with the father or to recognise the importance of the father in the child’s life – consideration of significance of child the subject of proceedings being separated from a sibling and step-father living in Melbourne – balancing significant relationships with others important in the child’s life and with the father – determination to vest sole parental responsibility in the father and to live with the father – determination that if mother remains in the same locality then that she spend equal time with the child.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CC, 60DA, 61B, 61C, 61D, 61DA, 65DAA, 65DAC, 65DAE

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Heath & Hemming (No 2) [2011] FamCA 749
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439
Marvel & Marvel (2010) 43 Fam LR 348
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
M & S (2007) FLC 93-313
Godfrey & Sanders [2007] FamCA 102
Champness & Hanson (2009) FLC 93-407
Hepburn v Noble (2010) FLC 93-438
MRR v GR (2010) 240 CLR 461

Applicant:

MS THOMPSON

Respondent:

MR PLATT

File Number:

TVC 1003 of 2012

Judgment of:

Judge Coker

Hearing dates:

13 & 14 February 2014, 8 & 9 July 2014

Date of Last Submission:

1 August 2014

Delivered at:

Townsville

Delivered on:

15 January 2015

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr Pack

Solicitors for the Respondent:

Strategic Family Lawyers

ORDERS

That the Father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, [X] born [omitted] 2011, subject to the Father consulting with the Mother in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s…

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 Thompson and Platt

Details

AGLC: Thompson and Platt [2015] FCCA 67
Case: [2015] FCCA 67
Decision Date: 15 January 2015

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Coker in the Federal Circuit Court of Australia. The dispute involved the father and mother of a child, [X], born in 2011, regarding the arrangements for the child's care, welfare, and development. The court was required to determine the specific terms of these arrangements, including parental responsibility for long-term and day-to-day decisions, the child's living arrangements, and the time the child would spend with each parent.

The court's reasoning led to a detailed set of orders aimed at establishing a clear framework for the parents' responsibilities and the child's time with each parent. The father was granted sole parental responsibility for long-term decisions concerning the child's care, welfare, and development, with the caveat that he must consult the mother prior to making final decisions on matters such as education, religious and cultural upbringing, health, name changes, and significant changes to living arrangements. The mother was made responsible for the child's day-to-day care when the child was with her, and the father was similarly responsible when the child was with him.

The orders stipulated that the child would live with the father in a specified area. The specific time the child would spend with the mother was detailed, varying based on whether the mother resided in the same area as the father, and including provisions for school holidays, special days, and communication between parents and the child. Further orders addressed communication protocols between the parents, restrictions on alcohol and drug consumption in the child's presence, and a dispute resolution process involving a Family Dispute Resolution Practitioner. The court also made specific provisions for defining halves of school holiday periods.

Orders

Orders of the court

That the Father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, [X] born [omitted] 2011, subject to the Father consulting with the Mother in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:

(a) a child’s education (both current and future);

(b) child’s religious and cultural upbringing;

(d) a child’s name;

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.

Notwithstanding order 1 herein:

(a) The Mother be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with her.

(b) The Father be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with him.

That the child live with the Father in the [A]/[C] area.

IN THE EVENT THE MOTHER REMAINS LIVING IN THE [A]/[C] AREA

The Mother spend time with the child as follows:

(a) From 15 January 2015 until 31 August 2015 from 5.00pm Wednesday until 9.00am Monday in each week;

(b) From 1 September 2015 until 31 March 2016 from 5.00pm Thursday until 9.00am Monday in each week;

(c) From 1 April 2016 from 5.00pm Friday or 3.00pm, should the child be attending school or day care, until 5.00pm on the following Friday or to the commencement of school or day care on the following Friday in each alternate week.

That the time with each parent pursuant to Order 4 be suspended during school holiday periods commencing from the Term 3 school holidays in 2015.

Each parent spend one half of each school holiday period with the child, or be responsible for decisions in relation to the care of the child during that time, unless otherwise agreed, as follows:

(a) With the Father for the first half in odd numbered years and with the Mother for the second half in odd numbered years; and

(b) With the Mother for the first half in even numbered years and with the Father for the second half in even numbered years.

That unless otherwise agreed the child spend time with the parent who would not otherwise have the child in their care on special days as follows:

(a) On the child’s birthday, from 3.00pm until 7.00pm;

(b) On each of the parent’s birthdays and sibling’s birthday, from 3.00pm until 7.00pm;

(c) On Father’s Day and Mother’s Day, the parent who is having the special day spend time with the child from 9.00am to 5.30pm; and

(d) On Christmas Day, if the parent not having the child in their care is in the same locality as the parent having the child in their care, then that parent shall have the opportunity to spend time with the child from 2.00pm Christmas Day until 2.00pm Boxing Day.

IN THE EVENT THAT THE MOTHER DOES NOT RESIDE IN THE [A]/[C] AREA

The Mother spend time with the child as follows:

(a) For the whole of the gazetted Term 1 and Term 3 school holidays in even numbered years;

(b) For the whole of the gazetted Term 2 school holidays in odd numbered years; and

(c) For the first four weeks of the gazetted Term 4 school holidays in odd numbered years and for the last four weeks of the gazetted Term 4 school holidays in even numbered years.

(d) Should the Mother be in the [A]/[C] area, for further periods during the gazetted school term of up to ten (10) days on one occasion each term, provided that the Mother has given written notice to the Father at least four weeks prior advising of her intention to spend time with the child, and that the Mother ensures that the child attends school, day care and all other activities that the child might otherwise necessarily be involved in during the gazetted school term.

The Mother be responsible for the costs of transportation for the child to and from the airport closest to the Father’s residence, and that the Mother advise the Father of any such travel arrangements in writing at least 21 days prior to any such travel.

10.

That each parent have telephone communication with the child when the child is in the other parent’s care at all reasonable times as may be agreed and, failing agreement, at 6.00pm on each Tuesday and Friday, and if not in the same locality on the child’s birthday, the Mother’s birthday, any sibling’s birthday, Mother’s or Father’s Day and Christmas day, with the parent not having the child to facilitate the call and the parent with whom the child is living to ensure that the child is available to take the calls in a quiet and private environment.

11.

That changeovers occur, unless otherwise agreed between the parties as follows:

(a) If the parties are living in the same locality, then changeover occur at the child’s day care or school, and if not attending day care or school, then at the McDonald’s Family Restaurant closest to the residence of the parent delivering the child up to the other parent; and

(b) If the parties are not living in the same locality, then changeover be effected at the airport closest in proximity to the Father’s residence.

12.

The parties shall communicate in the first instance with each other by text message or email, except in the case of an emergency.

13.

That the Mother and the Father shall:

(a) Keep the other parent informed at all times of their residential address and landline and mobile contact telephone number and notify the other parent within 48 hours of any change;

(b) Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and

(c) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.

14.

That the Mother and Father authorise, by this Order, the schools or day care centres attended by the child to give each parent information about the child’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child.

15.

That each party be restrained from consuming alcohol in excess of the legal blood/alcohol driving limit of 0.05 whilst having the child in their care or using illicit drugs in the presence of the child or from allowing the child to remain in the presence of any other person consuming alcohol or using illicit drugs.

16.

That each party be restrained from denigrating the other parent and from discussing the court proceedings in the presence of the child or allowing the child to remain in the presence of any other person acting in such a way.

17.

That each party be restrained from travelling overseas with the child without the agreement of the other party or Order of a court of competent jurisdiction

18.

That the process to be used for resolving disputes about the terms or operations of these orders shall be as follows:

(a) The parties shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;

(b) They shall pay the costs of the Family Dispute Resolution Practitioner equally;

(c) In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three practitioners and advise in writing details of their fees, experience and availability.

(d) The Father shall choose one of the listed practitioners within 7days of receipt of the list;

(e) If the Father fails to choose then the Mother may choose.

19.

That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN

(a) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;

(b) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;

(c) The whole of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the Sunday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN

(d) The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;

(e) The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;

(f) The whole of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Sunday preceding the recommencement of school;

(g) The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;

(h) The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school;

(i) The first four weeks of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 29 days later;

(j) The last four weeks of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday immediately following Christmas Day until 6.00pm on the Sunday immediately preceding the recommencement of school.

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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