Vince and Vince - [2016] FCCA 2590

FEDERAL CIRCUIT COURT OF AUSTRALIA

VINCE & VINCE

[2016] FCCA 2590

Catchwords:
FAMILY LAW – Parenting issues – relocation.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC(2) & (3), 65DA(1), (2) & (4), DAA(1), (2), (3) & (5)

Cases cited:

B & B (1997) FLC 92-755

Applicant:

MR VINCE

Respondent:

MS VINCE

File Number:

ADC 4545 of 2007

Judgment of:

Judge Mead

Hearing dates:

5 & 6 November 2015, 25 January 2016

Date of Last Submission:

25 January 2016

Delivered at:

Adelaide

Delivered on:

7 October 2016

REPRESENTATION

Counsel for the Applicant:

Ms Cocks

Solicitors for the Applicant:

Ian Charman & Associates

Counsel for the Respondent:

Mr Richards

Solicitors for the Respondent:

CG Family Law

Counsel for the Independent Children's Lawyer:

Ms Lee

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

ORDERS

That all previous orders be and the same are hereby discharged.
That the father and the mother have equal shared parental responsibility for the children X born (omitted) 2001 and Y born (omitted) 2004 (“the children”).
That the said children live with the mother.
That the mother be at liberty to relocate the children to reside in the Adelaide Metropolitan Area as and from the gazetted conclusion of the 2017 school year.
That pending the children relocating to reside in the Adelaide Metropolitan Area the children spend time with and communicate with their father:
(a)During school term time from the conclusion of school each alternate Wednesday until the commencement of school the following Monday in accordance with the existing pattern;
(b)From the conclusion of school on the last day of each of Terms 1, 2 and 3 until 5:00pm on the middle Saturday of each short school holiday period NOTING THAT the terms of paragraphs 5(c) hereof will prevail over the Easter period;
(c)In 2017 from the conclusion of school on the Thursday before Easter (or 3:00pm if not a school day) until 3:00pm on Easter Saturday;
(d)From the conclusion of school on the last day of Term 4 until 5:00pm seven (7) days after that date and on each alternate week thereafter between the same times during the December/January 2016/17school holiday period NOTING THAT the terms of paragraph 5(e) hereof will prevail in the Christmas week;
(e)From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in 2016 PROVIDED THAT the children are in the care of the mother from 3:00pm on 25 December until 3:00pm on 26 December in 2016;
(f)By telephone at 5:30pm on the occasions of each of the children’ birthdays, the father’s birthday and Father’s Day in the event that the children are not otherwise in the care of the father on those days NOTING THAT in the event the children are in the father’s care on any of the children’s birthdays, the mother’s birthday or Mother’s Day the mother shall be at liberty to speak with the children by telephone at 5:30pm that day.
That pending the children relocating to reside in the Adelaide Metropolitan Area paragraphs…

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 Vince and Vince

Details

AGLC: Vince and Vince [2016] FCCA 2590
Case: [2016] FCCA 2590
Decision Date: 7 October 2016

CaseChat Overview and Summary

This matter concerned orders made by Judge Mead regarding the parental responsibility and time arrangements for two children, X and Y. The dispute centred on the parents' shared parental responsibility, the children's primary residence, and the mother's proposed relocation with the children to the Adelaide Metropolitan Area.

The court was required to determine the extent of equal shared parental responsibility for the children, where the children would live, and whether the mother should be permitted to relocate the children to the Adelaide Metropolitan Area. Further, the court needed to establish specific arrangements for the children to spend time with and communicate with their father, both pending the relocation and after the relocation had occurred.

Judge Mead ordered that all previous orders be discharged. The court found that the father and mother should have equal shared parental responsibility for the children. The children were ordered to live with the mother, and she was granted liberty to relocate them to the Adelaide Metropolitan Area following the conclusion of the 2017 school year. Detailed provisions were made for the children to spend time with their father, both before and after the relocation, including specific arrangements for school terms, holidays, and communication. The court also made orders regarding the use of communication books or email for information sharing and specified handover procedures.

Orders

Orders of the court

That all previous orders be and the same are hereby discharged.

That the father and the mother have equal shared parental responsibility for the children X born (omitted) 2001 and Y born (omitted) 2004 (“the children”).

That the said children live with the mother.

That the mother be at liberty to relocate the children to reside in the Adelaide Metropolitan Area as and from the gazetted conclusion of the 2017 school year.

That pending the children relocating to reside in the Adelaide Metropolitan Area the children spend time with and communicate with their father:

(a) During school term time from the conclusion of school each alternate Wednesday until the commencement of school the following Monday in accordance with the existing pattern;

(b) From the conclusion of school on the last day of each of Terms 1, 2 and 3 until 5:00pm on the middle Saturday of each short school holiday period NOTING THAT the terms of paragraphs 5(c) hereof will prevail over the Easter period;

(c) In 2017 from the conclusion of school on the Thursday before Easter (or 3:00pm if not a school day) until 3:00pm on Easter Saturday;

(d) From the conclusion of school on the last day of Term 4 until 5:00pm seven (7) days after that date and on each alternate week thereafter between the same times during the December/January 2016/17school holiday period NOTING THAT the terms of paragraph 5(e) hereof will prevail in the Christmas week;

(e) From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in 2016 PROVIDED THAT the children are in the care of the mother from 3:00pm on 25 December until 3:00pm on 26 December in 2016;

(f) By telephone at 5:30pm on the occasions of each of the children’ birthdays, the father’s birthday and Father’s Day in the event that the children are not otherwise in the care of the father on those days NOTING THAT in the event the children are in the father’s care on any of the children’s birthdays, the mother’s birthday or Mother’s Day the mother shall be at liberty to speak with the children by telephone at 5:30pm that day.

That pending the children relocating to reside in the Adelaide Metropolitan Area paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 20 and 21 of the Order of 16 June 2010 remain in full force and effect.

That the parties use a communication book and/or email to relate information as to day to day and long term care, welfare and development of the children.

That upon the said children relocating to reside in the Adelaide Metropolitan Area after the gazetted conclusion of the 2017 school year the said children spend time with the father as follows:

(a) For the Christmas holiday period in each year as follows:

(i) Commencing in the 2017/18 Christmas school holiday period, for the first half of the period between the conclusion of fourth term in 2017 and 3:00pm on 24 December 2017 and each alternate year thereafter between the same times;

(ii) Commencing in the 2017/18 Christmas school holiday period for the first half of the period between 3:00pm 25 December 2017 and the commencement of the first school term in 2018 and each alternate year thereafter between the same times;

(iii) Commencing in the 2018/19 Christmas school holiday period for the second half of the period between the conclusion of fourth term in 2018 and 3:00pm on 25 December 2018 and each alternate year thereafter between the same times; and

(iv) Commencing in the 2018/19 Christmas school holiday period for the second half of the period between 3:00pm on 26 December 2018 and the commencement of the first school term in 2019 and each alternate year thereafter between the same times.

(b) As and from the commencement of the 2018 school year during school term time as follows:

(i) Commencing on the third weekend of each new school term, from the conclusion of school Friday to the commencement of school the following Monday within 40 kilometres of the Adelaide General Post Office, with the time to extend to the commencement of school on Tuesday in the event the time falls on a long weekend and with the father to be at liberty to take the children to (omitted) during that long weekend PROVIDED HOWEVER that the father facilitate the children’s attendance at all school and extra-curricular sport activities and, in the event of seven days written notice to him of same, their reasonable social activities; and

(ii) That the father be at liberty to increase the time the children are to spend with him pursuant to paragraph 8(b)(i) hereof on each of those weekends such that it extend for up to five consecutive nights commencing at the earliest on the Wednesday preceding the weekend in question PROVIDED HOWEVER that:

(ii.i) Such time is to be taken within 40 kilometres of the Adelaide General Post Office;

(ii.ii) The father provides to the mother not less than fourteen (14) days’ notice in writing of his intention to so extend the time and for how long; and

(ii.iii) The father obtains appropriate accommodation for the extended stay and facilitates the children’s attendance at school on time on each school day and facilitates their attendance at all school and extra-curricular sport activities, and in the event of seven (7) days written notice to him of same, their reasonable social activities.

(c) From the conclusion of school on the last day of each of Terms 1, 2 and 3 to 5:00pm on the middle Saturday of each short school holiday period commencing in April 2018 NOTING THAT the terms of paragraph 8(d) hereof will prevail over the Easter period; and

(d) From the conclusion of school on Maundy Thursday to the commencement of school on the Tuesday immediately following Easter (unless same falls during the school holiday period when the children are in the care of the mother in which circumstances the time shall conclude at 9:00am on the Tuesday immediately following Easter Monday) in each alternate year commencing in 2018 PROVIDED HOWEVER that the children will be in the care of the mother during the same period in 2019 and each alternate year thereafter.

That the children communicate with the parent with whom they are not living at 5:30pm on the occasion of each of the children’s birthdays, the parents birthdays and Mother’s Day and Father’s Day each year by way of the parent with whom they are living facilitating such communication or ensuring the children facilitate such communication by way of their own mobile telephones.

10.

That as and from the time the said children relocate to reside in the Adelaide Metropolitan Area all handovers that do not occur at the children’s schools occur by way of the mother delivering the children to the home of the maternal grandparents and the father collecting them therefrom at the commencement of any such time the children are to spend with the father and by of the father delivering the children to the home of the maternal grandparents and the mother collecting them therefrom at the conclusion of any such time, SAVE AND EXCEPT in the event that the father has moved to reside in an area closer to the Adelaide Metropolitan Area than (omitted) when and in such case handovers will occur outside of a business or café in the town closest to which the father may reside.

11.

That upon the said children locating to reside in the Adelaide Metropolitan Area after the gazetted conclusion of the 2017 school year paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18 and 21 of the order of 16 June 2010 and paragraph 7 of this order remain in full force and effect.

12.

That in the event that subsequent to the said children relocating to reside in the Adelaide General Post Office after the gazetted conclusion of the 2017 school year the father relocates to premises no further from the Adelaide Metropolitan Area than 40 kilometres THEN AND IN SUCH CASE paragraph 5(a) of this order continue in full force and effect in lieu of the terms of paragraph 8(b)(i) and 8(b)(ii) PROVIDED HOWEVER that paragraph 8(b)(ii.i) and 8(b)(ii.iii) shall remain in full force and effect.

13.

That the order for Independent Children's Lawyer made herein be discharged as and from the finalisation of any pending Application in a Case.

14.

That all extant Applications SAVE AND EXCEPT as to paragraphs 2 and 3 of the father’s Application in a Case filed herein on 19 September 2016 be otherwise dismissed.

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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