Tomkins and Faulkes - [2019] FCCA 381

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOMKINS & FAULKES

[2019] FCCA 381

Catchwords:
FAMILY LAW – Parenting – re-mitted for re-hearing of final hearing – whether child should live with mother in Town B or father in Sydney – child commencing school in 2019 – where parties concede equal time arrangement will only be practicable if both parties reside in the same city.

Legislation:

Family Law Act 1975 ss.60CA, 60CC(2), 60CC(3), 61DA, 64B

Cases cited:

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713

McCall & Clark [2009] FamCAFC 92
Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103

Applicant:

MR TOMKINS

Respondent:

MS FAULKES

File Number:

SYC 4464 of 2014

Judgment of:

Judge Monahan

Hearing dates:

10, 11 and 12 December 2018

Date of Last Submission:

18 December 2018

Delivered at:

Sydney

Delivered on:

22 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr Duane

Solicitors for the Applicant:

Milevski Family Lawyers

Counsel for the Respondent:

Mr Bolger

Solicitors for the Respondent:

Finn Roache Lawyers

ORDERS

THE COURT ORDERS ON A FINAL BASIS THAT:

Paragraphs 4, 6, 7, 11, 13, 16(b) and 17(b) of the Orders made by Judge Henderson (as her Honour then was) on 6 December 2017 be discharged on and from 25 February 2019.
Subject to these Orders, the child [X] born …2013 (“[X]”, or “the child”) live with the Mother on and from 25 February 2019.
If applicable, the father cause [X] to be returned to the mother’s care before 25 February 2019.
Subject to these Orders, [X] spend time with the father as agreed between the parties in writing and failing agreement as follows:
(a)During all School Terms:
i.commencing 27 February 2019 and each Wednesday thereafter, from after school (or 3:00pm on a non-school day) until 6:30pm, provided the father gives the mother written notification of his intention for that time to be spent, by no later than 5:00pm on the previous Sunday, otherwise this time be forfeited;
ii.commencing 1 March 2019 in a three week cycle (re-commencing each school term thereafter) for the first two consecutive weekends from after school (or 3:00pm on a non-school day) until 5:00pm on Sunday (or 5:00pm Monday in the event of a public holiday); and
iii.paragraph 4(a)(ii) may be extended to the commencement of school on the following day after the relevant Sunday (or public-holiday-Monday), should the father spend either evening in Town B AND provide the mother with written notification by no later than 4:00pm on the Tuesday prior to the relevant weekend.
(b)During School Term Holidays:
i.Commencing 2019, from the conclusion of school on the last day of school term until the mid-point of the relevant school term holiday; and
ii.Commencing 2020 and each year thereafter, from the conclusion of school on the last day of school term until 12 noon, 10 days after.
During the Long Summer School Holidays, [X] spend time as agreed in writing between the parties and failing agreement as follows:
(a)During the period in 2019/2020:
i.With…

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.

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Details

Case: [2019] FCCA 381
Decision Date: 22 February 2019

CaseChat Overview and Summary

This case involved an application before Judge Monahan concerning parenting orders for a child, [X]. The dispute centred on the specific arrangements for the child's living arrangements, time spent with each parent, and related matters such as schooling and changeovers. The court was required to determine the precise terms of these orders, considering the welfare of the child.

The court was tasked with determining the specific orders regarding where the child, [X], would live and the schedule for [X] to spend time with each parent. This included establishing detailed arrangements for school terms, school holidays, and special occasions. Additionally, the court needed to address the child's schooling arrangements and the locations where changeovers between parents would occur, as well as imposing restrictions on the parties relocating.

The court made final orders that discharged certain previous orders and established new arrangements for the child's residence with the mother from 25 February 2019. It then set out detailed provisions for the child spending time with the father during school terms and holidays, including specific dates and alternating arrangements for long summer holidays. The orders also mandated the child's enrolment and attendance at a specific public school in Town B, and stipulated the locations for changeovers between parents. Further provisions addressed potential relocation by either parent, with conditional orders suspending or altering the primary arrangements. The court also ordered that the parties be restrained from relocating to any city other than Town B or Sydney, unless by written agreement or further court order.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS THAT:

Paragraphs 4, 6, 7, 11, 13, 16(b) and 17(b) of the Orders made by Judge Henderson (as her Honour then was) on 6 December 2017 be discharged on and from 25 February 2019.

Subject to these Orders, the child [X] born …2013 (“[X]”, or “the child”) live with the Mother on and from 25 February 2019.

If applicable, the father cause [X] to be returned to the mother’s care before 25 February 2019.

Subject to these Orders, [X] spend time with the father as agreed between the parties in writing and failing agreement as follows:

(a) During all School Terms:

i. commencing 27 February 2019 and each Wednesday thereafter, from after school (or 3:00pm on a non-school day) until 6:30pm, provided the father gives the mother written notification of his intention for that time to be spent, by no later than 5:00pm on the previous Sunday, otherwise this time be forfeited;

ii. commencing 1 March 2019 in a three week cycle (re-commencing each school term thereafter) for the first two consecutive weekends from after school (or 3:00pm on a non-school day) until 5:00pm on Sunday (or 5:00pm Monday in the event of a public holiday); and

iii. paragraph 4(a)(ii) may be extended to the commencement of school on the following day after the relevant Sunday (or public-holiday-Monday), should the father spend either evening in Town B AND provide the mother with written notification by no later than 4:00pm on the Tuesday prior to the relevant weekend.

(b) During School Term Holidays:

i. Commencing 2019, from the conclusion of school on the last day of school term until the mid-point of the relevant school term holiday; and

ii. Commencing 2020 and each year thereafter, from the conclusion of school on the last day of school term until 12 noon, 10 days after.

During the Long Summer School Holidays, [X] spend time as agreed in writing between the parties and failing agreement as follows:

(a) During the period in 2019/2020:

i. With the father from the conclusion of the last day of Term 4 until 5:00pm on 27 December 2019;

ii. With the mother from 5:00pm on 27 December 2019 until 5:00pm on 3 January 2020;

iii. With the father from 5:00pm on 3 January 2020 until 5:00pm on 10 January 2020;

iv. With the mother from 5:00pm on 10 January 2020 until 5:00pm on 17 January 2020;

v. With the father from 5:00pm on 17 January 2020 until 5:00pm on 24 January 2020; and

vi. With the mother from 5:00pm on 24 January 2020 until the commencement of school Term 1, 2020.

(b) During the period in 2020/2021:

i. With the mother from the last day of Term 4 in 2020 until 5:00pm on 27 December 2020;

ii. With the father from 5:00pm on 26 December 2020 until 5:00pm on 5 January 2021;

iii. With the mother from 5:00pm on 5 January 2021 until 5:00pm on 16 January 2021;

iv. With the father from 5:00pm on 16 January 2021 until 5:00pm on 27 January 2021.

i. With the father from the last day of Term 4 until 5:00pm on the mid-point of the relevant holiday period; and

ii. With the mother from 5:00pm on the mid-point of the relevant holiday period until the commencement of school in Term 1.

(d) Commencing 2022/2023 and each alternate year (that is, each even numbered year) thereafter:

i. With the mother from the last day of Term 4 until 5pm on the mid-point of the relevant holiday period; and

ii. With the father from 5:00pm on the mid-point of the relevant holiday period until 5:00pm on the day prior to the commencement of school in Term 1.

Each party do all acts and things to cause [X] to be forthwith enrolled and attend School 1 Public School in Town B.

Changeover not occurring at school, occur as agreed between the parties in writing and failing agreement as follows:

(a) at the mother’s residence, at the commencement of the child’s time with the father or at the conclusion of time should time be spent in Town B; and

(b) at Suburb C train station, at the conclusion of the child’s time with the father should the time be spent in Sydney.

For the purposes of these Orders, in the event there are two mid-points in the relevant holiday period, the changeover mid-point is the second mid-point.

Subject to any written agreement or further Order of the Court, the parties are restrained from relocating to any other city other than Town B or Sydney.

AND THE COURT ORDERS, IN THE EVENT THE FATHER RELOCATES TO TOWN B, THAT:

10.

Paragraphs 2, 3, 4 and 7 herein be suspended.

11.

[X] live with each parent as agreed and failing agreement, at all times except during the Long Summer School Holidays, on a week about basis and failing agreement as to the commencement and conclusion time, in a fortnightly cycle commencing Monday after school (or 3:00pm on a non-school day) and concluding the following Monday before school (or 3:00pm on a non-school day), with the mother in the first week and with the father in the second week.

12.

Changeover not occurring at school, occur as agreed in writing and failing agreement, occur at the mother’s residence for any time [X] comes into the father’s care and occur at the father’s residence for any time [X] comes into the mother’s care.

AND THE COURT ORDERS, IN THE EVENT THE MOTHER RELOCATES TO SYDNEY, THAT:

13.

Paragraphs 2, 3, 4, 6 and 7 herein be suspended.

14.

[X] live with each parent as agreed and failing agreement, at all times except during the Long Summer School Holidays, on a week about basis and failing agreement as to the commencement and conclusion time, in a fortnightly cycle commencing Monday after school (or 3:00pm on a non-school day) and concluding the following Monday before school (or 3:00pm on a non-school day), with the father in the first week and with the mother in the second week.

15.

16.

Each party do all acts and things to cause [X] to be enrolled in and attend schooling at School 2 Public School in Sydney.

AND THE COURT FURTHER ORDERS THAT:

17.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A. Subject to these Orders, the Final Orders made 6 December 2017 remain in full force and effect and these Orders should be read in conjunction with those Orders further noting paragraphs 1, 2 and 3 have already been discharged.

B. The parties may benefit from attending Family Therapy as recommended by Dr L.

C. 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 Annexure A and those particulars are included in these orders.

NOTATION:

Please note the Orders inserted to read Paragraph 5(c) and (d) of these Orders has been amended pursuant to rule 16.02(2)(3) of the Federal Circuit Court Rules 2001.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The precise orders sought by the father are as follows:[3] [3] See Exhibit “C.”1. That the Father and Mother have equal shared parental responsibility for [X].2. That each of the Mother and Father have the day to day parental responsibility for [X] during such periods that he lives with or spends time with either of them.3. That from the date of these orders until 14 January 2019, [X] shall live with the Father and the Mother in accordance with the following two week cycle:3.1 In week one, with the father from 5pm on Sunday until 5pm on Wednesday and at all other times during week one with the mother; and3.2 In week two, with the father from 5pm on Saturday until 5pm on Wednesday and at all other times during week two with the mother.4. That for the purpose of order 3, the Mother is to deliver [X] to the Father at Suburb C train station on either the Saturday or Sunday at 5pm, and the Father is to deliver [X] to the Mother’s residence each Wednesday at 5pm.5. That from 14 January 2019, [X] shall live with Father and the Mother as follows:OPTION 15.1 If the Court determines that [X] is to live in Sydney and the Mother lives in Sydney, from 14 January 2019 until 13 January 2021:5.1.1 Week One: Monday at 9am to Wednesday at 3pm with the Father, and the remaining time during week one with the Mother, and each alternate week thereafter.5.1.2 Week Two: Monday at 9am to Wednesday at 3pm with the Mother, and the remaining time during week two with the Father, and each alternate week thereafter.5.2 That from 14 January 2021, [X] live with each of the Mother and Father for a consecutive period of 7 days alternating over a 14 day period as follows:5.2.1 That [X] live with the Father from the conclusion of school on the first Monday immediately following the commencement of the school year for a period of 7 consecutive days until before school the following Monday and for the same period in each alternate week.5.2.2 That [X] reside with the Mother from the conclusion of school on Monday in the second week immediately following the commencement of the school year for a consecutive period of 7 days until before school the following Monday and for the same period in each alternate week. OPTION 25.3 If the Court determines that [X] is to live with the Father in Sydney and the Mother does not live in Sydney, [X] is to spend time with the Mother as follows: 5.3.1 During two out of every three weekends, the Mother is to collect [X] from school on Friday afternoons and the Father is to collect [X] from the Mother at her residence at 4pm on Sunday.5.3.2 During any long weekend (being a weekend during [X]’s school term which includes a public holiday or pupil free day on a Monday or a Friday), [X]’s time with the Mother is to be extended to include the public holiday or pupil free day, with the mother to collect [X] at the conclusion of school and Father to collect [X] from the mother at 4pm from her residence on the last day of the long weekend.OPTION 35.4 If the Court determines that [X] is to live with the Mother in Town B, [X] is to spend time with the Father as follows:5.4.1 During two out of every three weekends, the Father is to collect [X] from school on Friday afternoons and the Mother is to collect [X] from the Father at the Suburb C train station at 4pm.5.4.2 During any long weekend (being a weekend during [X]’s school term which includes a public holiday or pupil free day on a Monday or a Friday), [X]’s time with the Father is to be extended to include the public holiday or pupil free day, with the Father to collect [X] from the conclusion of school on the day [X] finishes school and the Mother is to collect [X] from the Father at Suburb C train station at 4pm on the last day of the long weekend.School holiday orders for each option6. During the Autumn, Winter and Spring school holiday periods, [X] is to spend time each holiday period as agreed between the parents and failing agreement:6.1 With the Mother for the first half of each school holiday period and with the Father for the second half in even-numbered years;6.2 With the Father for the first half of each school holiday period and the Mother for the second half in odd-numbered years; and6.3 In the event that any school holiday period cannot be divided equally in accordance with these orders (due to the number of days being an odd number), the parent who is spending the second half of the school holidays with [X] is to spend the additional day with [X].7. During the Summer school holiday period and until the conclusion of 2020 Summer school holidays, [X] shall spend time with each of the Mother and the Father during the Summer school holiday period as agreed between the Mother and the Father, and failing agreement [X] is to live with each of the Mother and Father for a consecutive period of 7 days alternating over a 14 day period with the first 7 day period with the Mother in even-numbered years and with the Father in odd-numbered years.8. That from the 2021 Summer school holidays onwards, [X] shall spend time with each of the Mother and the Father during the Summer school holiday period as agreed between the Mother and the Father, and failing agreement:8.1 With the Mother in the first half of the term school holidays and with the Father in the second half of the term school holidays in even numbered years; and8.2 With the Father in the first half of the term school holidays and with the Mother in the second half of the term school holidays in odd numbered years.9. That for the purposes of these Orders the school holiday periods are deemed to begin at the conclusion of school on the last day of the school term and to conclude at the commencement of the first day of the following school term.Changeover10. For the purposes of implementing order 5.1 and 5.2 hereof, each parent or their nominee is to collect [X] from after school on the Monday at the commencement of each period of residence and each parent of their nominee is to deliver [X] to school at the conclusion of each such period of residence.11. That for the purposes of orders 5.1 and 5.2, in the event the Mother is unable to collect or deliver [X] to school at any time for any reason, she is to first provide the Father with the opportunity to collect or deliver [X] at the commencement and conclusion of school and for the purpose of this order only if the Father is collecting [X] from school on behalf of the Mother, he is to deliver [X] to the Mother at any reasonable time and location nominated by the Mother.School12. If [X] lives in Sydney he is to be enrolled in primary school at School 2 Public School.13. If [X] lives in Town B he is to be enrolled in primary school at School 1 Public School.14. For the purposes of orders 11 and 12 hereof, the parties are to do all acts and things and sign all documents necessary so as to enrol [X] in the said schools.15. That the parties shall not enrol [X] in any educational institution without first consulting each other and reaching agreement with respect to the same in writing.Special Occasions16. Notwithstanding any other order [X] shall live with the Father as follows:16.1 On Father’s Day in each year at times to be agreed in writing and failing agreement from the conclusion of school on the Friday immediately before Father’s Day until before school on Monday if [X] is living in Sydney or until 6pm on Father’s Day if [X] is living in Town B.16.2 From 4pm on 21 December 2018 until 4pm on 24 December 2018 and for the purposes of this period of time the mother is to deliver [X] to the Father at Suburb C at the commencement of the period and the Father is to deliver [X] to the Mother at her residence at the conclusion of the period.16.3 From 4pm on 23 December until 4pm on 27 December 2019 and for that same period in each alternate year thereafter.16.4 From 4pm on the Thursday immediately prior to Good Friday 2019 until 4pm on Tuesday immediately following Easter Monday 2019 and for the same period in each alternate year thereafter.17. Notwithstanding any other order, [X] shall spend time with the Mother as follows:17.1 On Mother’s Day in each year at times to be agreed in writing and failing agreement from the conclusion of school on the Friday immediately before Mother’s Day until before school on Monday if [X] is living in Town B or until 6pm on Mother’s Day if [X] is living in Sydney.17.2 From 4pm on 23 December until 4pm on 27 December 2018 and for that same period in each alternate year thereafter.17.3 From 4pm on the Thursday immediately prior to Good Friday 2020 until 4pm on Tuesday immediately following Easter Monday 2020 and for the same period in each alternate year thereafter.18. That for the purposes of Orders 6, 7, 8, 16 and 17 hereof, the parent with whom [X] is to spend time will collect [X] from the other parent such that if [X] is in the Father’s care, the Mother shall collect [X] from the Father at Suburb C train station at the commencement of her period of time, and if [X] is in the mother’s care, the Father is to collect [X] from the mother at her residence at the commencement of his time.19. That each of the parties shall:19.1 Not later than forty eight (48) hours prior to the same, inform the other of any medical treatment being administered to [X] and of any appointments at which [X] is to attend;19.2 Provide all authorities and directions necessary for all health professionals consulted by [X] and all schools or preschools attended by [X] to provide to each of the parties all information and material held by them in relation to [X]; and,19.3 Sign all documents as are necessary to be identified as the primary and alternate emergency contact on all documentation relating to [X].20. That both parties shall keep the other party informed at all times of their current residential address, residential telephone number, mobile telephone number, Skype contact details and email address as is applicable.21. That both parties be at liberty to communicate with [X] by telephone and any other electronic method utilised by [X] including but not limited to E-mail, SMS text message, Skype and Facebook at all reasonable times by contacting [X] by any of those means and that neither parent shall unreasonably refuse [X] from communicating with the other parent.22. That each of the parties shall ensure that [X] have reasonable access to a fixed line telephone and/or mobile telephone and/or computer to enable him to communicate with the other parent pursuant to order 21 hereof.23. That each of the parties shall not later than 48 hours prior to the same notify the other of all school, sporting and extra-curricular events for [X] and that each parent be permitted to attend all such activities in which [X] participates.24. That the parties be restrained and use their best endeavours so as to prevent any other person from:24.1 Making any derogatory comments to or about the other party or his or herrelatives to or in the presence or hearing of [X];24.2 Discussing these proceedings with or in the presence or hearing of [X]; and,24.3 Physically disciplining [X].25. That consent orders are signed on the basis that [X] shall reside in Sydney with our client and proposed Order 5.3 in our client’s Case Outline shall apply (unless your client also resides in Sydney and order 5.1 shall apply). 26. That upon the mother relocating [X]’s residence to within a 25km radius of School 2 Public School, a Binding Child Support Agreement be entered into that provides for: 26.1 A lump sum child support payment from the father to the mother in the amount of $21,447.00. Such payment to be made within 30 days of the date entering into this agreement with such payment to be made to an account in the mother’s name and the mother shall be at liberty to make such weekly withdrawals as she considers appropriate. 26.2. Periodic child support in the sum of $300.00 per week for the period of 3.5 years, payable each Friday within 7 days of the date that your client relocates to Sydney and weekly for the period of 3.5 years. 27. Following the final payment of 2.2 above that neither party pay periodic child support to each other. 28. The father meets all school expenses for [X].

Ratio Decidendi

Legal Principle Established

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