TURNBULL & TURNBULL - [2015] FamCA 1099

FAMILY COURT OF AUSTRALIA

TURNBULL & TURNBULL

[2015] FamCA 1099

FAMILY LAW – CHILDREN – Interim parenting – Previous interim orders in place – Where the father has since obtained employment some distance from the mother – Issue over where the child should attend school in the coming year, time spent with the father and changeovers – Significant interpersonal conflict between the parents – Best interests of the child – Where the child has established a relationship with the school proposed by the mother and both proposed schools are a significant distance from the father –The child to attend the school proposed by the mother – Where the interests of the child in a meaningful relationship with both parents is indicative of substantially retaining the current regime of the child’s time with the father – Changeover arrangements given the parents’ conflict.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA

Goode and Goode [2006] FamCA 1346
Kirkland and Granger [2007] FamCA 1471
Marvel & Marvel(No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Raymond and Harold [2009] FamCA 155
Re G: Children’s Schooling [2000] FamCA 462
Turnbull [2014] FCCA 2606

APPLICANT:

Ms Turnbull

RESPONDENT:

Mr Turnbull

FILE NUMBER:

PAC

4597

2014

DATE DELIVERED:

10 December 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

30 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dura

SOLICITOR FOR THE APPLICANT:

M & K Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders pending further order:

That Orders 3 and 4 made on 14 November 2014 be discharged.
That the child spend time with the father as agreed between the mother and father in writing with such writing to include but be not limited to SMS or email communication and in default of agreement as follows:
(a)       until the commencement of school term one in 2016 each alternate week from after day care on Friday to before day care on Monday commencing Friday, 11 December 2015 and in each other week from after day care on Monday to before day care on Tuesday commencing Monday, 21 December 2015;
(b)       that from the commencement of school term one in 2016 and thereafter during school term each alternate week commencing on the first weekend after the resumption of school term from after-school care on Friday to before school care on Monday and in each other week from after school care Monday to before school care on Tuesday;
(c)       during the Term 1, 2 and 3 mid-year public school holidays from after school care on the last day of school term until 5.00 pm on the midpoint Saturday of such holiday period;
(d)       from 4.00 pm Christmas Eve 2015 until 1.00 pm Christmas Day 2015 provided always that the father’s time with the child shall be suspended thereafter until 6.00 pm on 26 December 2015.
That both the mother and father be at liberty 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.

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Details

AGLC: TURNBULL & TURNBULL [2015] FamCA 1099
Case: [2015] FamCA 1099
Decision Date: 10 December 2015

CaseChat Overview and Summary

In *Turnbull & Turnbull*, Foster J of the Family Court of Australia considered an application concerning interim parenting arrangements for a child. The dispute arose between the parents, who had previously agreed to interim orders, following the father obtaining employment at a significant distance from the mother. The central issues revolved around the child's schooling for the upcoming year, the quantum of time the child would spend with the father, and the practical arrangements for changeovers, all against a backdrop of considerable interpersonal conflict between the parents.

The court was required to determine the best interests of the child in relation to these matters. Specifically, the court had to decide which of the proposed schools the child should attend, given that the child had an established relationship with the school proposed by the mother, and both proposed schools were a considerable distance from the father's new place of employment. Furthermore, the court needed to consider how to maintain a meaningful relationship between the child and both parents, and how to manage changeover arrangements in light of the parents' ongoing conflict.

Foster J ordered that the child attend the school proposed by the mother. In reaching this decision, the court applied the paramount consideration of the child's best interests, noting the child's established relationship with that school. The court also determined that the child's interest in maintaining a meaningful relationship with both parents necessitated substantially retaining the existing regime for the child's time with the father. The court further addressed the changeover arrangements, taking into account the parents' conflict.

Orders