Time and Bailey - [2014] FCCA 2094

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIME & BAILEY

[2014] FCCA 2094

Catchwords:
FAMILY LAW – Parenting – allocation of parental responsibility – capacity of father to provide for the physical needs of the child – extent of the mother’s time with the child during school terms – conflict over provision of electronic devices to child – assessment of risk of child not being returned from international travel – factors for determining appropriate level of security for international travel – extension of existing Watch List order.

Legislation:

Family Law Act 1975 (Cth), ss.60B; 60CA; 60CC; 65D; 65DAC

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
McCall & Clark (2009) FLC 93-405

Applicant:

MS TIME

Respondent:

MR BAILEY

File Number:

HBC 967 of 2008

Judgment of:

Judge Baker

Hearing dates:

14 and 15 July 2014

Date of Last Submission:

15 July 2014

Delivered at:

Hobart

Delivered on:

10 September 2014

REPRESENTATION

Counsel for the Applicant:

Mr Lethbridge SC

Solicitors for the Applicant:

KDB Holmes Solicitors

Counsel for the Respondent:

Mr Dixon SC

Solicitors for the Respondent:

Abetz Curtis Lawyers

ORDERS

All previous parenting orders in relation to the child X born (omitted) 2005 (“the child”) with the exception of order 24 of the orders dated 9 June 2011, be discharged.
The parties have equal shared parental responsibility for the child.
The child live with the father.
The child spend time with the Mother for two continuous periods of 9 days in each school term, those periods to be as follows:
(a)After the conclusion of school on the Friday which is the19^th day of the school term or thereabouts when the Mother will collect the child from school until the following Sunday week (9 nights later) at 6.00pm when the Mother will return the child to the Father; and
(b)From after school on the Friday which is the 47^th day of the school term or thereabouts when the Mother will collect the child from school until the following Sunday week (9 nights later) at 6.00pm when the Mother will return the child to the Father.
The child spend the second half of the 2014 September holiday period with the Mother and the first half with the Father.
The child spend the first half of the December/January 2014 school holiday period with the Mother and the second half with the Father and alternating yearly thereafter.
From 2015 the child spend the second half of each Term 1 and 2 school holiday period with the Mother and the first half with the Father.
The child spend each alternate September school holidays with the Mother commencing in 2015 and each alternate year with the father commencing in 2016.
In the years that the child is due to spend the second half of the December/January school holidays with the Mother this time shall commence three days early so that the child is returned to Tasmania a minimum of three days before school recommences.
For the purpose of facilitating the child’s travel…

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 Time and Bailey

Details

AGLC: Time and Bailey [2014] FCCA 2094
Case: [2014] FCCA 2094
Decision Date: 10 September 2014

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in 2005. The dispute involved the father and mother regarding the arrangements for the child's living arrangements, time spent with each parent, and related matters. The decision was made by Judge Baker.

The court was required to determine the specific orders concerning the child's residence, the allocation of parental responsibility, the schedule for the child to spend time with each parent, including during school holidays and overseas travel, and provisions for communication between the child and each parent. Additionally, the court needed to address the financial responsibilities associated with the child's travel and the security required for international travel.

The court ordered that previous parenting orders be discharged, with the exception of one specific order. It established equal shared parental responsibility for the child, with the child to live with the father. Detailed provisions were made for the child to spend time with the mother, including specific periods during school terms and holidays, and for overseas travel by both parents. The court also set out requirements for communication between the child and each parent, including the use of technology and specific times. Further orders addressed the exchange of passports, the child's placement on the Airport Watch List, and the definition of school holidays. The parties were also ordered to attend a Post Separation Parenting Program.

Orders

Orders of the court

All previous parenting orders in relation to the child X born (omitted) 2005 (“the child”) with the exception of order 24 of the orders dated 9 June 2011, be discharged.

The parties have equal shared parental responsibility for the child.

The child live with the father.

The child spend time with the Mother for two continuous periods of 9 days in each school term, those periods to be as follows:

(a) After the conclusion of school on the Friday which is the19th day of the school term or thereabouts when the Mother will collect the child from school until the following Sunday week (9 nights later) at 6.00pm when the Mother will return the child to the Father; and

(b) From after school on the Friday which is the 47th day of the school term or thereabouts when the Mother will collect the child from school until the following Sunday week (9 nights later) at 6.00pm when the Mother will return the child to the Father.

The child spend the second half of the 2014 September holiday period with the Mother and the first half with the Father.

The child spend the first half of the December/January 2014 school holiday period with the Mother and the second half with the Father and alternating yearly thereafter.

From 2015 the child spend the second half of each Term 1 and 2 school holiday period with the Mother and the first half with the Father.

The child spend each alternate September school holidays with the Mother commencing in 2015 and each alternate year with the father commencing in 2016.

In the years that the child is due to spend the second half of the December/January school holidays with the Mother this time shall commence three days early so that the child is returned to Tasmania a minimum of three days before school recommences.

10.

For the purpose of facilitating the child’s travel to spend time with the Mother during school holiday periods:

(a) The Father deliver the child to the Mother no later than the time the child is to spend with the mother in each period;

(b) The Mother be solely responsible for the costs associated with the child travelling to Sydney or such other mainland capital city as nominated by her;

(c) The Father be responsible for the costs associated with the child returning to Hobart from any capital city on the eastern seaboard of Australia at the conclusion of his time with the Mother;

(d) The Mother and Father each be solely responsible for their own costs of travelling with the child; and

(e) The child must be booked on flights leaving Tasmania before 11am and booked on flights for return to Tasmania leaving after noon on the day of the child’s departure.

11.

The child spend time with the Mother at other times as the parties may agree in writing.

12.

The Mother be permitted to remove the child from Australia on one occasion per annum when in her care, to travel with him to the (country omitted) for a period of not more than 21 days including travel time, such trip to occur during the school vacation period in each school year unless otherwise agreed in writing by the parties, and in relation to those trips, the Mother must on each occasion:

(a) Provide to the Father a photocopy of return airline tickets in the child’s name, X, no later than 30 days prior to the child’s departure date;

(b) An itinerary indicating the places at which the child will be staying when in the (country omitted) and the address and, where possible, landline telephone number of each place;

(c) Provide to the Father a mobile telephone number on which the child may be contacted throughout the period he is to spend overseas with the Mother; and

(d) At least 14 days in advance pay to the Father’s solicitors $20,000.00 security to be held by those solicitors in a controlled monies account or if the Father does not have a solicitor into a controlled monies account held by the Mother’s solicitors, to be repaid to the Mother if the child is returned to Australia in accordance with these orders, or if the child is not so returned, to be applied in payment of the Father’s expenses incurred in seeking the child’s return to Australia, including legal costs and disbursements in Australia and (country omitted) and travel and accommodation costs incurred in travelling to seek the child’s return.

13.

In order to facilitate the child’s travel overseas, the Father must provide the mother with the child’s Australian Passport within a time to enable the mother to book airline tickets for the child, and otherwise no later than 45 days prior to the child’s departure date.

AND IT IS NOTED THAT the Mother will return the child’s passport to the Father at the conclusion of each period of overseas travel.

14.

The Father be permitted to remove the child from Australia for a holiday for a period of not more than 21 days including travel time during the school holiday vacation period when he is in his care provided he comply with the following conditions:

(a) Provide the Mother with a photocopy of departure and return airline tickets in the child’s name, X, no later than 30 days prior to the child’s departure;

(b) Provide to the Mother an itinerary indicating the places at which the child will be staying when overseas and the address and landline telephone number of each place; and

(c) Provide to the Mother a mobile telephone number on which the child may be contacted throughout the period he is to spend overseas with the Father.

15.

The child remain on the Airport Watch List until 20 January 2019 at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.

16.

For the purposes of Orders 12 and 14 herein, the Father cause the name of the child X to be removed from the Airport Watch List at all points of international arrivals and departures in Australia for the period required to facilitate the parties’ travel with the child in accordance with those Orders.

17.

For the purposes of these orders, school holidays are defined as commencing on the day after school finishes and concluding on the day before school starts in accordance with the Term dates for Tasmanian Government School Students prepared by the Department of Education, Tasmania.

18.

The child communicate with the Mother and the Father at times to be agreed in writing and failing agreement at the following times:

(a) If the child is not spending time with the Mother:

(i) Communication by web cam or similar visual technology each Tuesday between 7.40am and 8.00am;

(ii) Communication by telephone each Thursday between 7.40am and 8.00am or by Skype phone if the Mother is travelling outside of Australia;

(iii) Communication by telephone each Sunday between 8.00am and 8.20am or by Skype phone if the Mother is travelling outside of Australia;

(iv) Communication by web cam or similar visual technology or telephone between 9.00am and 9.20am on Christmas Day, the child’s birthday, the Mother’s birthday and Mother’s Day; and

(v) Such additional and/or alternate times as agreed, having regard to the child commencing school.

(b) If the child is not spending time with the Father:

(i) Communication by web cam or similar visual technology each Tuesday between 7.40am and 8.00am;

(ii) Communication by telephone each Thursday between 7.40am and 8.00am;

(iii) Communication by telephone each Sunday between 9.00am and 9.20am;

(iv) Communication by web cam or similar visual technology or telephone between 9.00am and 9.20am on Christmas Day, the child’s birthday, the Father’s birthday and Father’s Day.

19.

The parties do all things reasonable to promote communication as set out in Order 18 herein including but not limited to:

(a) Ensuring that the child is available to communicate at the designated days and times; maintaining an internet connection of such speed so as to ensure that the webcam/Skype communication is working at optimum level; and

(b) Encouraging the child to participate in the communication and ensuring there are no disruptions or distractions during the communication and or interference by the other parent.

20.

The parties correspond by email and, for the purposes of this order, inform each other and keep each other informed of a current, working email address at all times, excepting:

(a) In the case of emergency when either party can contact the other by mobile phone; and

(b) At the times the child is collected from the residence of either parent.

21.

At all times the parties ensure each other has:

(a) A telephone contact number available for the other to speak with the child while the child is in the care of the other party; and

(b) Each party shall keep the other informed of any changes throughout the duration of these orders.

22.

Each party inform the other of the residential address from time to time where the child will be staying.

23.

The Mother be restrained from providing the child with a Wi-Fi enabled mobile telephone and/or iPad with Facetime capability while the child is in the Father’s care.

24.

Neither party is to denigrate the other party or members of the other party’s family to the child or in the presence or hearing of the child, or at all.

25.

Both parties must use their best endeavours to ensure that no person denigrates the other party or members of the other party’s family to the child in the presence or hearing of the child, or at all.

26.

Any minor changes to the arrangements anticipated by the Orders be made not less than 24 hours in advance, by agreement between the parties.

27.

Both Parties:

(a) Attend and complete, as soon as practicable, a Post Separation Parenting Program;

(b) Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;

(d) Provide evidence to the other party’s solicitor that they have enrolled in the program; and

(e) Provide evidence to the other party’s solicitor that they have successfully completed the program.

THE COURT NOTES THAT:

A. With respect to the time to be spent by the child with the Mother, that time during school term will be spent in Tasmania.

B. There are no obligations on either parent to ensure that communication between the other parent and the child lasts for a minimum period of time.

C. The Mother and Father will ensure that telephone communication with the child does not occur on speaker phone, and that the child is provided with privacy in which to speak to the other parent when communicating in accordance with Order 18 herein.

D. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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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