VALENTINE & ECCLES - [2015] FCCA 1260

FEDERAL CIRCUIT COURT OF AUSTRALIA

VALENTINE & ECCLES

[2015] FCCA 1260

Catchwords:
FAMILY LAW – Parenting – applicant seeking to relocate to (country omitted) with parties’ two children aged nine and six years.

Legislation:

Family Law Act 1975 (Cth). ss.60B, 60CA, 60CC(2) and (3), 61DA, 65DAA, 69ZW

AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Taylor v Barker (2007) 37 Fam FLR 461

MRR v GR [2010] HCA 4
Cowley & Mendoza [2010] FamCA 597
Heath v Hemming (No. 2) [2011] FamCA 749

Applicant:

MS VALENTINE

Respondent:

MR ECCLES

File Number:

MLC 3881 of 2011

Judgment of:

Judge Bender

Hearing date:

23 April 2015

Date of Last Submission:

24 April 2015

Delivered at:

Melbourne

Delivered on:

15 May 2015

REPRESENTATION

Counsel for the Applicant:

Ms Brennan

Solicitors for the Applicant:

Richmond and Bennison

Counsel for the Respondent:

Mr Gates

Solicitors for the Respondent:

Tragear and Harris Lawyers

ORDERS

The Application of the Mother filed 2 September 2014 seeking to relocate with the parties’ children X born (omitted) 2005 (“X”) and Y born (omitted) 2008 (“Y”) to (country omitted) be dismissed.
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for X and Y.
X and Y live with the Mother.
X and Y spend time and communicate with the Father as follows:-
(a)each alternate weekend from after school Friday to before school Monday (week one);
(b)until Y turns seven each Wednesday from 4:00pm to 7:30pm;
(c)upon Y turning seven in week two from after school Tuesday to before school Wednesday and each alternate week thereafter;
(d)upon Y turning eight in week two from after school Monday to before school Wednesday and each alternate week thereafter;
(e)for one half of the term school holidays as agreed between the parties and failing agreement for the first half;
(f)on a week about basis during the long summer vacation as agreed between the parties and subject to X and Y being returned to the Mother one week prior to the commencement of the school year;
(g)on Christmas Day at such times as agreed between the parties;
(h)on Father’s Day from 9:00am to 5:00pm;
(i)if not already spending time with the Father pursuant to these orders, on each of the Father’s, X’s and Y’s birthdays as agreed between the parties and failing agreement, if a school day from after school to 7:00pm and if a non-school day from 10:00am to 2:00pm;
(j)by telephone no less than twice a week on days and at times to be agreed between the parties; and
(k)as otherwise agreed between the parties.
The Father’s time with X and Y pursuant to these orders shall be suspended as follows:-
(a)on Mother’s Day between 9:00am and 5:00pm;
(b)on Christmas Day at such times as agreed between the parties;
(c)if not living with the Mother pursuant to these orders, on each of the Mother’s, X’s and Y’s birthdays as agreed between the parties and failing agreement, if a school day from after school…

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 VALENTINE & ECCLES

Details

AGLC: Valentine and Eccles [2015] FCCA 1260
Case: [2015] FCCA 1260
Decision Date: 15 May 2015

CaseChat Overview and Summary

In the matter of Valentine & Eccles, heard before Judge Bender, the dispute concerned an application by the Mother for permission to relocate with the parties' two children, X and Y, to a country overseas. The Father opposed this application.

The court was required to determine whether to grant the Mother's application for relocation. This involved considering the best interests of the children, X and Y, in light of the proposed move and the existing parental responsibilities and arrangements.

Judge Bender dismissed the Mother's application to relocate the children overseas. The court discharged all previous parenting orders and established equal shared parental responsibility for X and Y. The children were ordered to live with the Mother, with specific provisions for the Father to spend time and communicate with them, including alternate weekends, mid-week time that varied as the children aged, half of school holidays, and a week-about arrangement for the long summer vacation. Further orders detailed arrangements for birthdays, Father's Day, and Mother's Day, as well as communication protocols and the exchange of information regarding the children's health and schooling.

Orders

Orders of the court

The Application of the Mother filed 2 September 2014 seeking to relocate with the parties’ children X born (omitted) 2005 (“X”) and Y born (omitted) 2008 (“Y”) to (country omitted) be dismissed.

All previous parenting orders be discharged.

The parties have equal shared parental responsibility for X and Y.

X and Y live with the Mother.

X and Y spend time and communicate with the Father as follows:-

(a) each alternate weekend from after school Friday to before school Monday (week one);

(b) until Y turns seven each Wednesday from 4:00pm to 7:30pm;

(c) upon Y turning seven in week two from after school Tuesday to before school Wednesday and each alternate week thereafter;

(d) upon Y turning eight in week two from after school Monday to before school Wednesday and each alternate week thereafter;

(e) for one half of the term school holidays as agreed between the parties and failing agreement for the first half;

(f) on a week about basis during the long summer vacation as agreed between the parties and subject to X and Y being returned to the Mother one week prior to the commencement of the school year;

(g) on Christmas Day at such times as agreed between the parties;

(h) on Father’s Day from 9:00am to 5:00pm;

(i) if not already spending time with the Father pursuant to these orders, on each of the Father’s, X’s and Y’s birthdays as agreed between the parties and failing agreement, if a school day from after school to 7:00pm and if a non-school day from 10:00am to 2:00pm;

(j) by telephone no less than twice a week on days and at times to be agreed between the parties; and

(k) as otherwise agreed between the parties.

The Father’s time with X and Y pursuant to these orders shall be suspended as follows:-

(a) on Mother’s Day between 9:00am and 5:00pm;

(b) on Christmas Day at such times as agreed between the parties;

(c) if not living with the Mother pursuant to these orders, on each of the Mother’s, X’s and Y’s birthdays as agreed between the parties and failing agreement, if a school day from after school to 7:00pm and if a non-school day from 10:00am to 2:00pm.

The Father’s time with X and Y pursuant to orders 5(a), (b), (c) and (d) herein shall be suspended during school holidays and resume in the school term as if the holidays had not intervened.

Changeover that does not take place at X and Y’s school/s shall take place with the Father collecting X and Y from the Mother’s residence at the commencement of time and the Mother collecting X and Y from the Father’s residence at the conclusion of time.

Each party keep the other informed at all times of their current residential address and contact telephone number.

10.

Each party shall advise the other of any serious illness or injury suffered by X or Y as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

11.

The parties be permitted to attend all extra-curricular activities and school events relating to X and Y normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.

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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