Tremper and Harpon - [2010] FamCA 148

FAMILY COURT OF AUSTRALIA

TREMPER & HARPON

[2010] FamCA 148

FAMILY LAW - CHILDREN - with whom a child lives - relocation - child with particular vulnerabilities - expert evidence of short and long term detriment if moves - application to relocate child’s residence dismissed.

Family Law Act 1975 (Cth), s.60B(1), s.60(CA), s.60CC(1),(3)(e), s.60CC(4) and (4A), s.61DA, s.61DA(2), s.65DAA (1), (2) and (5), s.65DAA(1)(a), (b) and (2)(c), (d)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Ahcraft & Haber (2010) FamCA 6
MRR & GR [2009] HCATrans 316
Rosa & Rosa [2009] FamCACF 81
Taylor & Barker (2007) FLC 93-345

Sampson & Hartnett (No. 10) (2007) FLC 93-350

Starr & Duggan [2009] FamCAFC 115
McCall & Clark (2009) FLC 93-405
Fitzroy & Fitzroy and Ors [2009] FamCA 954
AMS v. AIF: AIF v. AMS (1999) FLC 92-852
U & U (2002) FLC 93-112

FATHER:

Mr Tremper

MOTHER:

Ms Harpon

FILE NUMBER:

DGC

1130

2009

DATE DELIVERED:

2 March, 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

27, 28 and 29 January, and

1 and 5 February, 2010

REPRESENTATION

COUNSEL FOR THE FATHER:

Mr. Glover

SOLICITOR FOR THE FATHER:

Julie Taylor

COUNSEL FOR THE MOTHER:

Ms. Smallwood

SOLICITOR FOR THE MOTHER:

Susan Ruffin

Orders

That all previous orders and injunctions which relate to the child … born … March, 2004 be discharged.

That the father and mother have equal shared parental responsibility for the child.

That the child remain enrolled at J Primary School in W until further order, or at such other school on which his parents agree.

That each of the parties be restrained from locating the child’s residence with him or her at a location which would render it not reasonably practicable for the child to attend J Primary School in W or such other school as is agreed between them, save with the written consent of the other.

That the child live with the father :
(a)during school terms in 2010, from the conclusion of school on Friday until the commencement of school on Monday in each alternate weekend, commencing :
(i)on 5 March, 2010; and
(ii)recommencing on the first weekend of each school term;

(b)commencing in the first school term in 2011, from the conclusion of school on Friday until the commencement of school on Tuesday in each weekend commencing on the first weekend of each school term;

(c) during school terms, from the conclusion of school on Monday until the commencement of school on Tuesday, in each alternate week, commencing :
(i)on 15 March, 2010; and
(ii)recommencing on the third Monday in each school term if the school term commences on a Monday and otherwise on the second Monday in each school term;

(d)for one week in each school term holiday as agreed between the parties and, failing agreement :
(i)the first week in 2010 and each alternate year thereafter, commencing at the conclusion of the last school day of the term and concluding at 5:00 pm.…

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 Tremper and Harpon

Details

AGLC: Tremper and Harpon [2010] FamCA 148
Case: [2010] FamCA 148
Decision Date: 2 March, 2010

CaseChat Overview and Summary

In the matter of *Tremper and Harpon*, Brown J considered orders relating to a child born in March 2004. The dispute concerned the parental responsibility and living arrangements for the child following the separation of the parents.

The court was required to determine the extent of equal shared parental responsibility, the specific living arrangements for the child, including school attendance and holiday periods, and provisions for communication, information sharing, and parental conduct post-separation. The court also needed to address the discharge of previous orders and the finalisation of proceedings.

The court ordered the discharge of all previous orders and injunctions concerning the child. It established equal shared parental responsibility for both the father and mother. The child was to remain enrolled at J Primary School in W, with provisions to prevent either parent from relocating the child's residence to a location that would make attending that school impracticable without the other's consent. Detailed arrangements were set out for the child to live with the father on alternate weekends, specific weekdays, and during school holidays, with corresponding arrangements for the child to live with the mother at all other times. Further orders included liberal telephone communication, attendance at school events, access to school and medical reports, and the completion of a post-separation parenting course. The court also mandated the exchange of residential and contact details within 24 hours of any change.

Orders

Orders of the court

That all previous orders and injunctions which relate to the child … born … March, 2004 be discharged.

That the father and mother have equal shared parental responsibility for the child.

That the child remain enrolled at J Primary School in W until further order, or at such other school on which his parents agree.

That each of the parties be restrained from locating the child’s residence with him or her at a location which would render it not reasonably practicable for the child to attend J Primary School in W or such other school as is agreed between them, save with the written consent of the other.

That the child live with the father :

(a) during school terms in 2010, from the conclusion of school on Friday until the commencement of school on Monday in each alternate weekend, commencing :

(i) on 5 March, 2010; and

(ii) recommencing on the first weekend of each school term;

(b) commencing in the first school term in 2011, from the conclusion of school on Friday until the commencement of school on Tuesday in each weekend commencing on the first weekend of each school term;

(c) during school terms, from the conclusion of school on Monday until the commencement of school on Tuesday, in each alternate week, commencing :

(i) on 15 March, 2010; and

(ii) recommencing on the third Monday in each school term if the school term commences on a Monday and otherwise on the second Monday in each school term;

(d) for one week in each school term holiday as agreed between the parties and, failing agreement :

(i) the first week in 2010 and each alternate year thereafter, commencing at the conclusion of the last school day of the term and concluding at 5:00 pm. on the seventh day thereafter (with the result that the child spends seven nights with the father); and

(ii) the second half in 2011 and each alternate year thereafter, commencing at 5:00 pm. on the second Saturday of the holiday and concluding at 5:00 pm. on the last Saturday of the holiday;

(e) during the school summer holiday in 2010/2011 for two periods of eight days which shall be, unless the parties agree otherwise, at least eight days apart, at times to be agreed and, failing agreement :

(i) from 12:00 noon on 31 December, 2010 until 12:00 noon on 8 January, 2011; and

(ii) from 12:00 noon on 16 January, 2011 until 12:00 noon on 24 January, 2011;

(f) commencing in the school summer holiday in 2011/2012, for one half of the summer period at times to be agreed and, failing agreement, and subject to sub-paragraphs (g) and (h) hereof :

(i) the first half in 2011/2012 and each alternate year thereafter; and

(ii) the second half in 2012/2013 and each alternate year thereafter;

(g) from 3:00 pm. on Christmas Day until 5:00 pm. on Boxing Day in 2011 and each alternate year thereafter;

(h) from 5:00 pm. on Christmas Eve until 3:00 pm. on Christmas Day in 2010 and each alternate year thereafter.

(i) in the event the child would not otherwise live with the father for any part of his birthday, then on the child’s birthday at times to be agreed and, failing agreement :

(i) if the birthday falls on a school day, from the conclusion of school until 6:30 pm.; and

(ii) if the birthday falls on a non-school day, from 10:00 am. until 2:00 pm.;

(j) in the event the child would not otherwise live with the father on Fathers’ Day, from 9:00 am. on Fathers’ Day until the commencement of school on the following Monday;

(k) at such other times as are agreed between the parties.

That in the event the child would not otherwise live with the mother for any part of his birthday, then the child live with the mother on his birthday at times to be agreed and, failing agreement :

(a) if the birthday falls on a school day, from the conclusion of school until 6:30 pm.; and

(b) if the birthday falls on a non-school day, from 10:00 am. until 2:00 pm.;

That in the event the child would not otherwise live with the mother on Mothers’ Day, and notwithstanding paragraph (5)(a) and (b) hereof, from 9:00 am. on Mothers’ Day until the commencement of school on the following Monday.

That the child live with the mother at all times other than those specified in paragraph (5) hereof.

That each party have liberal telephone communication with the child when he is not in his or her respective care.

10.

That changeovers which occur other than at the commencement or conclusion of a school day take place at a location agreed by the parties and, failing agreement, outside J Primary School in W, or such other school as the child attends, and each of the parties be at liberty to arrange for another adult to attend such changeovers, either with the party or in lieu of the party.

11.

That each of the parties be at liberty to attend events, activities, and functions at the child’s school which are routinely attended by parents.

12.

That each of the parties be at liberty to arrange with the principal of the child’s school to obtain, at his or her expense (if any), copies of :

(a) all school reports for the child and reports of any medical practitioner, psychologist, counsellor or like professional to whom the child is referred by the school;

(b) application forms for school photos of the child; and

13.

That each of the parties keep the other advised of any significant illness or accident experienced by the child when in his or care and provide details of each treating medical practitioner or like professional involved with the child and authorise the medical practitioner or like professional to speak with the other party about the child’s symptoms, prognosis and treatment.

14.

That each party keep the other informed of any appointments for the child with, and reports of, specialist medical practitioners, psychologists, speech or other therapists, or like professionals and that both parties be at liberty to attend such appointments, subject always to the consent of the treating professional.

15.

That as soon as practicable both parties complete a Post Separation Parenting course.

16.

That each of the parties keep the other advised of the residential address at which the child lives with him or her and of a telephone number at which he or she can be contacted and advise of any change within 24 hours of such change.

17.

That all extant applications be otherwise dismissed.

18.

That these proceedings be removed from the List of matters awaiting finalisation.

19.

That pursuant to s.62B and s.65DA(2), 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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

20.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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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