Tillson and Keller (No 2) - [2020] FamCA 899

FAMILY COURT OF AUSTRALIA

TILLSON & KELLER (NO. 2)

[2020] FamCA 899

FAMILY LAW – CHILDREN – Parenting Orders – International Relocation – Where the mother is from New Zealand and has lived in Australia for 12 years – Where the mother seeks to return to New Zealand and relocate the child – Where the father opposes relocation – Where the Independent Children’s Lawyer opposes relocation – Where the mother and the father have a history of depression and anxiety – Where the father was diagnosed with a Major Depressive Disorder – Where the mother’s parenting capacity will likely improve if relocation permitted – Where the father’s mental health is likely to suffer if relocation permitted – Where the parties agree to equal shared parental responsibility – Where an order for equal time is not in the child’s best interests – Where the child is to live with the mother and spend substantial and significant time with the father – Where the mother is willing to foster the relationship between the child and the father – Where the child can spend substantial and significant time with the father if relocation permitted – Where the best interests of the child are met by allowing relocation – Where the mother is to register the Order as an overseas parenting order with the District Court of New Zealand

Family Law Act 1975 (Cth)

Care of Children Act 2004 (NZ) s 81 and s 82

MRR v GR [2010] HCA 4
U v U (2002) 211 CLR 238
Heath v Hemming (No 2) [2011] FamCA 749

APPLICANT:

Mr Tillson

RESPONDENT:

Ms Kate Keller

INDEPENDENT CHILDREN’S LAWYER:

Paula Fletcher

FILE NUMBER:

LEC

169

2017

DATE DELIVERED:

26 October 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

10, 11, 12 & 13 February and 8 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McDiarmid

SOLICITOR FOR THE APPLICANT:

Ferguson Legal

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Burgess Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Decle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fletcher
Universal Law

Orders

IT IS ORDERED BY CONSENT

That all previous parenting Orders and parenting plans are discharged.
That save as otherwise provided for herein, the mother and the father shall have equal shared parental responsibility for the making of decisions about all major long-term issues (as that term is defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”)) in relation to the child, X TILLSON born … 2016, (“the child”) and, to be clear, the provisions of s 65DAC of the Act apply to the making of any such decision.

IT IS FURTHER ORDERED

That the mother and the father shall forthwith take all steps necessary to cause the records of the Registry of Births, Deaths and Marriages (NSW) to be amended so that the child’s name is officially recorded as X KELLER-TILLSON and thereafter the parents shall be restrained from using any name for…

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 Tillson and Keller (No 2)

Details

AGLC: Tillson and Keller (No 2) [2020] FamCA 899
Case: [2020] FamCA 899
Decision Date: 26 October 2020

CaseChat Overview and Summary

This case concerned parenting orders made by Forrest J in the Federal Circuit and Family Court of Australia. The dispute involved the mother, who had resided in Australia for 12 years and was originally from New Zealand, seeking to relocate with the child to New Zealand. The father opposed this relocation, as did the Independent Children’s Lawyer. Both parents had a history of depression and anxiety, with the father having been diagnosed with Major Depressive Disorder.

The court was required to determine whether permitting the mother to relocate with the child to New Zealand was in the child's best interests. Specifically, the court considered the potential impact of relocation on the parents' mental health, the mother's parenting capacity, and the father's mental health. The parties had agreed to equal shared parental responsibility, but the court had to assess whether an order for equal time was appropriate in the circumstances.

Forrest J reasoned that the child's best interests would be met by allowing the relocation. The court found that the mother's parenting capacity was likely to improve if the relocation was permitted, while acknowledging that the father's mental health was likely to suffer. Despite the father's opposition and the ICL's initial opposition, the court concluded that the child could still spend substantial and significant time with the father if the relocation proceeded, and the mother was willing to foster the relationship between the child and the father.

The court ordered that previous parenting orders and plans be discharged and that the mother and father have equal shared parental responsibility for major long-term issues concerning the child. The child was to live with the mother, who was permitted to relocate the child to New Zealand. The orders detailed specific arrangements for the child to spend substantial and significant time with the father, both before and after the relocation, including provisions for communication and travel. The mother was also ordered to register the Australian parenting order as an overseas parenting order with the District Court of New Zealand.

Orders

Orders of the court

IT IS ORDERED BY CONSENT

That all previous parenting Orders and parenting plans are discharged.

That save as otherwise provided for herein, the mother and the father shall have equal shared parental responsibility for the making of decisions about all major long-term issues (as that term is defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”)) in relation to the child, X TILLSON born … 2016, (“the child”) and, to be clear, the provisions of s 65DAC of the Act apply to the making of any such decision.

IT IS FURTHER ORDERED

That the mother and the father shall forthwith take all steps necessary to cause the records of the Registry of Births, Deaths and Marriages (NSW) to be amended so that the child’s name is officially recorded as X KELLER-TILLSON and thereafter the parents shall be restrained from using any name for the child other than that name.

That the child shall live with the mother and the mother is permitted to relocate the child to live with her in the B Region of New Zealand any time after the expiry of four weeks from the date of these Orders.

That to the extent that it may be necessary, the Court requests that the Australian Federal Police remove the name of the child, X TILLSON born … 2016 (female), from the Family Law Watchlist at all points of international arrivals and departures in Australia.

That on the undertakings of the paternal grandmother and paternal grandfather given to the Court on 18 September 2020, the child shall spend time with her father from 8:00 am each Thursday until 5:00 pm on the following Saturday each week until the mother and child leave Australia to travel to New Zealand to live.

That the obligations imposed upon the paternal grandmother and paternal grandfather pursuant to their undertakings given to the Court on 18 September 2020 will be discharged when the mother and child leave Australia to travel to New Zealand to live, but the obligations imposed upon them by their undertakings given to the Court on 13 February 2020 shall continue, with those undertakings not being discharged by these Orders.

That in 2021, the mother shall bring the child back to Australia at her expense for a period of at least two weeks in each of the four three-monthly quarters of the year and during those two week periods the child shall spend time with the father as follows:

(a) The first two week period:

(i) From 8 am on the first Monday to 5 pm on the following Wednesday;

(ii) From 8 am on the first Friday to 5 pm on the following Monday;

(iii) From 8 am on the second Wednesday to 5 pm on the following Sunday;

(b) The second two week period:

(i) From 8 am on the first Monday to 5 pm on the following Thursday;

(ii) From 8 am on the first Saturday to 5 pm on the following Wednesday;

(iii) From 8 am the second Friday to 5 pm on the following Sunday;

(i) From 8 am on the first Monday to 5 pm on the following Friday;

(ii) From 8 am on the first Sunday to 5 pm on the following Thursday;

(iii) From 5 pm on the second Friday to 5 pm on the following Sunday.

That in 2021, if the father is able to travel to New Zealand and have the child spend time with him at his own expense, the child shall spend time with the father in New Zealand for one period of two weeks in each of the two halves of the year as follows:

(a) The first two week period:

(i) From 8 am on the first Monday to 5 pm on the following Wednesday;

(ii) From 8 am on the first Friday to 5 pm on the following Monday;

(iii) From 8 am on the second Wednesday to 5 pm on the following Sunday;

(b) The second two week period:

(i) From 8 am on the first Monday to 5 pm on the following Friday;

(ii) From 8 am on the first Sunday to 5 pm on the following Thursday;

(iii) From 5 pm on the second Friday to 5 pm on the following Sunday.

10.

That one of the visits to Australia in the fourth quarter of 2021 or to New Zealand in the second half of 2021 shall be arranged between the parents so that the child spends Christmas Eve and Christmas Day of 2021 in the care of the father.

11.

That, in addition to all other time provided for in these Orders, if the father elects to have the child travel to Australia and spend time with him, at his expense, over the long-weekends that fall in June and October each year in New South Wales, then the mother shall bring or send the child over, at the father’s expense in terms of return airfares, and the child shall spend time with the father at least from 8:00 am on the Saturday of such weekend until 5:00 pm on the following Monday.

12.

That from the beginning of 2022, the child shall spend time with the father as follows:

(b) From when the child starts school in 2022:

(i) For two periods of up to one whole week in New Zealand during school term, being one week in in the first half of the year and one week in the second half of the year, at the father’s election and expense, provided the father ensures the child attends school during each such week;

(ii) For one whole week in each of the end of term New Zealand school holidays with the mother to bring or send the child to Australia at her expense for those visits in the first week of each of those holidays;

(iii) For two whole weeks in the Summer holidays at the end of 2022 with the mother to bring or send the child to Australia at her expense with this visit not to include Christmas Day unless the mother elects for it to do so.

(i) For three weeks or exactly half (whichever is the greater) of the New Zealand Summer school holidays at the end of 2023 and each Summer holiday period thereafter, with the mother to bring or send the child to Australia at her expense with this visit to include Christmas Eve and Christmas Day in 2023 and in 2025;

(ii) For two periods of up to two whole weeks in New Zealand during school term, being two weeks in the first half of the year and two weeks in the second half of the year, at the father’s election and expense, provided the father ensures the child attends school during each such period;

(iii) For three periods of two weeks, being the last week of the New Zealand school term and the first week of the end of term school holidays that follow, with the mother to bring the child to Australia at her expense;

(d) From when the child turns 10 in … 2026:

(i) For two periods of up to two whole weeks in New Zealand during school term, being two weeks in the first half of the year and two weeks in the second half of the year at the father’s election and expense, provided the father ensures the child attends school during each such period;

(i) For three weeks or exactly half (whichever is the greater) of the New Zealand Summer holidays at the end of each year, with the mother to bring/send the child to Australia at her expense with this visit to include Christmas Day in the odd numbered years;

(ii) For the whole of two of the end of term, two week long school holiday periods each year, at the father’s election as to which ones, with the mother to bring/send the child to Australia at her expense.

13.

That should the father decide that he would like to spend his New Zealand school holiday time with the child in New Zealand instead of in Australia he may elect to do so, and, if he does, the child shall spend the same time with the father in New Zealand as she would have spent with him in Australia, but with the father being responsible for the cost of his own travel to New Zealand and, to be clear, such time is to be considered additional to any time that the father spends with the child in New Zealand during school term pursuant to other provisions of these Orders.

14.

That the child shall communicate with the parent whose care she is not in at any particular time by internet video conferencing platform such as FaceTime, Skype, WhatsApp, or Zoom (whichever the father elects) twice per week, at times to be agreed, and in the absence of agreement then each Wednesday and Sunday evening at 6:45 pm New Zealand time for up to 15 minutes or such other agreed time.

15.

That the parent whose care the child is in at the particular time shall be responsible for ensuring that the child makes the internet video conferencing call to the other parent provided for in (14) above and shall ensure that she is given privacy for the purposes of such call.

16.

That in addition to the time that the child is to spend with the father before she leaves with her mother for New Zealand she shall spend from 9:00 am until 4:00 pm with the father on her fourth birthday on … 2020.

17.

That when the child is to spend time with the father in Australia, before she moves to New Zealand and after she has moved there, the mother shall be responsible for delivering or causing her to be delivered to the father’s home at the commencement of her time with him, or, if the parents otherwise agree, to the father at the airport, and for collecting or causing her to be collected from the father’s home at the conclusion of her time with him, or, if the parents otherwise agree, the father can return her to the mother at the F City airport.

18.

That when the child is to spend time with the father in New Zealand, the father shall be responsible for collecting her from the mother’s home at the commencement of her time with him, or, if the parents otherwise agree, at the airport, and for delivering her back to the mother at her home at the conclusion of her time with him, or, if the parents otherwise agree, the father can return her to the mother at the L City airport.

19.

That where each of the parents has the right to elect when the child’s time with the father is to take place within the parameters of these Orders, no less than 28 days’ notice in writing shall be given to the other parent of the dates within which that time will take place in accordance with these Orders, and where the father has the right to elect to have the child travel to Australia for the June and/or October long weekends each year, not only shall he give the mother no less than 28 days’ notice in writing of that election but he shall also cause copies of the economy class air e-ticket/s from L City to F City and return, as necessary, to be sent to the mother at the same time with the mother to respond to him with confirmation that she has received that notice and those tickets within 24 hours of such receipt.

20.

That after the child moves with her mother to live in New Zealand, arrangements pertaining to the child spending special days such as her birthday, the father’s birthday, the mother’s birthday, Father’s Day, Mother’s Day and the Easter holidays shall be determined as between the mother and the father pursuant to the processes otherwise in place pursuant to these Orders for the child to spend time with the father, but should the child not be with the father on her birthday, the father’s birthday, Father’s Day, Easter Sunday or Christmas Day then the mother shall ensure that the child communicates with the father via internet video conferencing calls on those days (in addition to the two calls per week already provided for) and the father shall ensure that the child communicates with the mother in the same way if the child is in his care on her birthday, the mother’s birthday, Mother’s Day, Easter Sunday or Christmas Day.

21.

That each of the mother and the father shall keep the other informed at all times of his and her residential address, email address, and mobile telephone number, as well as any landline telephone number he or she might have and any change to any of these shall be advised to the other parent by no later than 24 hours after any such change.

22.

That the mother shall keep the father informed of the name, address and telephone number of any treating medical or allied health practitioners who may treat the child from time to time and she shall authorise any such practitioner to provide the father with all information that the father may request about the child’s treatment, diagnosis and prognosis, that the practitioner is lawfully able to provide.

23.

That the father shall keep the mother informed of the name, address and telephone number of any treating medical or allied health practitioners who may treat the child at any time that she is in his care and he shall authorise any such practitioner to provide the mother with all information that the mother may request about the child’s treatment, diagnosis and prognosis, that the practitioner is lawfully able to provide.

24.

That each parent shall inform the other parent of any significant development in respect of the child’s health as soon as reasonably practicable after such development.

25.

That the mother by this Order authorises any day-care centre, pre-school or school that the child might attend from time to time to provide the father with any information the father might request about the child’s educational, sporting, cultural and social progress and development that the school may lawfully provide, with such information to be provided at the father’s expense if there is any.

26.

That during the time the child is with either parent, that parent shall:

(i) Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(ii) Speak of the other parent respectfully;

(iii) Not denigrate or insult the other parent in the presence or hearing of the child;

(iv) Use his or her best endeavours to ensure that others do not denigrate or insult the other parent within the hearing or presence of the child;

(v) Not use physical discipline on the child or allow any other person to physically discipline the child.

27.

That before the mother leaves Australia to travel to New Zealand with the child, she shall take all steps necessary to cause a copy of these parenting Orders to be registered as an overseas parenting order with the District Court of New Zealand pursuant to s 81 of the Care of Children Act 2004 (NZ) and she shall provide the father with evidence that these Orders have been so registered.

28.

That the Independent Children’s Lawyer is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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