Tucker and Landis - [2015] FCCA 54

FEDERAL CIRCUIT COURT OF AUSTRALIA

TUCKER & LANDIS

[2015] FCCA 54

Catchwords:
FAMILY LAW – Parenting – parental responsibility agreed – whether appropriate to order equal shared parental responsibility or in circumstances whether equal shared parental responsibility is rebutted – allegations by each party in respect of the other parent’s failure to meet obligations – determination that equal shared parental responsibility was appropriate and should apply – consideration of objects and principles and factors required to be considered in relation to determination of with whom children should live – consideration of relocation and consequences of unilateral actions by mother in respect of the father’s relationship with the children – consideration of family report and of concerns with regard to the long-term effect on the father’s relationship with the children if placed with the mother – consideration of mother’s capacity to foster relationship with the father – balancing significant considerations with regard to geographic consequences of living with one parent or the other – determination that children live with father – determination that if mother were to reside in the same locality then equal time otherwise appropriate.

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:

MR TUCKER

Respondent:

MS LANDIS

File Number:

BRC 9651 of 2013

Judgment of:

Judge Coker

Hearing date:

25 November 2014

Date of Last Submission:

25 November 2014

Delivered at:

Townsville

Delivered on:

19 January 2015

REPRESENTATION

Counsel for the Applicant:

Mr Middleton

Solicitors for the Applicant:

Carroll Fairon Solicitors

Solicitors for the Respondent:

In person

ORDERS

That all previous parenting Orders be discharged
That the Mother and the Father have equal shared parental responsibility for the major long term issues of the children, [X] born [omitted] 2002, [Y] born [omitted] 2004 and [Z] born [omitted] 2009, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to…

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 Tucker and Landis

Details

AGLC: Tucker and Landis [2015] FCCA 54
Case: [2015] FCCA 54
Decision Date: 19 January 2015

CaseChat Overview and Summary

This matter concerned parenting orders for three children, [X], [Y], and [Z], before Judge Coker. The dispute revolved around the arrangements for the children's care, welfare, and development, including their living arrangements, time spent with each parent, and decision-making responsibilities.

The court was required to determine the extent of equal shared parental responsibility for major long-term issues, including education, health, and religious upbringing. It also needed to establish specific arrangements for the children's day-to-day care, living arrangements, and communication with parents, considering the potential for the Mother to reside in or outside the Rockhampton area. Further issues included the method and timeliness of parental communication, the exchange of information regarding the children's health and education, and prohibitions against denigration of a parent.

Judge Coker ordered the discharge of all previous parenting orders. The court established equal shared parental responsibility for major long-term issues, mandating consultation and a genuine effort to reach joint decisions. The orders differentiated day-to-day care responsibilities based on which parent the children were with. Specific living arrangements and time with each parent were detailed, contingent on the Mother's residence in or outside the Rockhampton area, with provisions for school holidays and changeovers. The court also mandated respectful communication, the exchange of relevant information, and prohibited denigration of either parent in the children's presence. Finally, the Mother was ordered to ensure the children do not have contact with her brother, Mr F.

Orders

Orders of the court

That all previous parenting Orders be discharged

That the Mother and the Father have equal shared parental responsibility for the major long term issues of the children, [X] born [omitted] 2002, [Y] born [omitted] 2004 and [Z] born [omitted] 2009, including but not limited to:

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

(b) the child’s religious and cultural upbringing;

(d) the child’s name; and

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

That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree; and

That notwithstanding Order 2 herein:

(a) The Mother shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with her; and

(b) The Father shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with him.

IN THE EVENT THAT THE MOTHER DOES NOT RESIDE IN THE ROCKHAMPTON AREA

That the children live with the Father.

That the children spend time with the Mother at all times as may be agreed and, failing agreement as follows:

(a) For the first half of all school holidays in odd numbered years;

(b) For the second half of all school holidays in even numbered years; and.

(c) For up to 10 consecutive nights once per school term in the event that the Mother is in the Rockhampton area, with the Mother to provide the Father with at least 14 days’ notice.

Changeover during the school holiday periods shall occur as follows:

(a) At the commencement of the school holidays, on the first Saturday of the school holidays at 1.00pm until the middle Saturday of the school holidays at 1.00pm; and

(b) From the middle Saturday of the school holidays at 1.00pm until the last Saturday of the school holidays at 1.00pm.

That unless otherwise agreed, all changeovers shall occur at McDonald’s [omitted].

That the children shall communicate with their parents via Skype where possible when facilities enable Skype (otherwise via telephone) on each Tuesday, Thursday and Sunday from 5.00pm – 6.00pm. That the parents with whom the children are living with at the time shall initiate the call.

10.

When the children are communicating with the other parent each parent shall:

(a) Ensure that the children are available to receive the telephone call;

(b) Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent;

11.

That the children are at liberty to call either parent at all reasonable times and the parent whom they are with shall assist the children to make any calls they request.

IN THE EVENT THE MOTHER RESIDES IN THE ROCKHAMPTON AREA

12.

That the children shall live with each parent on a week-about basis with changeover occurring after school Friday.

13.

That for the school holidays during March/April, June/July and September, the week-about arrangement shall continue.

14.

That for the school holidays during December/January, the children shall spend half of the holidays with each parent as follows:

(a) The first half with the Mother and the second half with the Father in even years;

(b) The first half with the Father and the second half with the Mother in odd years;

(i) For the commencement of the school holidays, on the Friday of the last week of school;

(ii) On 5.00pm Friday which falls in the middle week of the holidays;

(iii) For the conclusion of the school holidays, 5.00pm on Friday immediately prior to the commencement of school.

15.

That those changeovers which do not occur at school shall occur at Rockhampton [omitted].

16.

Each parent shall:

(a) Keep the other parent informed at all times of their residential address, email address, landline and mobile contact telephone numbers and shall advise of any change within forty-eight (48) hours of such change occurring;

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

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

17.

That the parents agree to communicate in relation to the children via email in the first instance and text message, if email is unavailable, and that the communication be respectful and relate to the care, welfare and development of the children.

18.

That the parents agree to respond to each other within three hours if the communication is by text message, and within 24 hours if the communication is by email. The parties will make a genuine effort to respond to the specific issues raised to ensure that only one email needs to be sent per specific issue in each week.

19.

The Mother and Father authorise, by this Order, the schools, churches, swimming clubs or any other activity attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children.

20.

That each party be restrained from denigrating the other parent or their partner in the presence of the children or allowing the children to remain in the presence of any other person acting in such a way.

21.

That during the time the children are with either parent, that parent shall:

(a) Respect the privacy of the other parent and not question the children about the personal life of the other parent;

(b) Speak of the other parent respectfully;

(d) Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

22.

That the Mother will ensure the children do not have contact with her brother Mr F.

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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