Waite & Waite - [2007] FamCA 1715

FAMILY COURT OF AUSTRALIA

WAITE & WAITE

[2007] FamCA 1715

FAMILY LAW – CHILDREN – Consideration of equal shared time – Significant and substantial time – Wife’s application to move with children to a location four hours by car from husband’s home

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
B & B [2006] FamCA 1207
AMS v AIF (1999) 199 CLR 160
Godfrey & Sanders [2007] FamCA 102

APPLICANT:

Mr Waite

RESPONDENT:

Ms Waite

FILE NUMBER:

MLF

1363

2006

DATE DELIVERED:

31 August 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Watt J

HEARING DATES:

3, 11 April, 19 July, 30, 31 July, 1, 2, 3 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R. Hoult

SOLICITOR FOR THE APPLICANT:

Armstrong Collins & DeLacy

COUNSEL FOR THE RESPONDENT:

Mr D. Mort

SOLICITOR FOR THE RESPONDENT:

Fiona R McGregor

Orders

All previous parenting orders be and are hereby discharged.
The husband and wife have equal shared parental responsibility for making major decisions affecting the care, welfare and development of the children of the marriage B born … December 1999 and G born … May 2001 (“the children”).
Save as provided in paragraph 4 hereof, the children live with the wife.
The children live with the husband as follows:
4.1For two weekends out of three commencing on Friday 19 October 2007 and Friday 26 October 2007 from school lunchtime (or noon, whichever first occurs) on Friday until 4.00pm on Sunday (to be extended to 4.00pm on Monday) in the event of a non-school day) with the intent that the husband be able to spend Friday afternoon at the children’s school but if the husband does not intend to attend at the children’s school on any particular Friday, he is to notify the wife by no later than 8.00pm on the preceding Wednesday and on any Friday in respect of which notice is given, the husband’s time shall commence at 5.00pm with the wife delivering the children to the L Tourist Information Centre;
4.2for school term holidays as follows:
4.2.1for first term for the first half with changeover to occur on the second Saturday, unless otherwise agreed;
4.2.2for the whole of the second term unless otherwise agreed between the parties;
4.2.3for the third term for 10 nights with changeover to occur at 4.00pm on the eleventh day unless otherwise agreed.
4.3for the first half of the long summer vacation;
4.4for Christmas from 9.30am on Boxing Day until 4.30pm on 28 December in each year (with the wife to spend time with the children from 4.30pm on Christmas Eve until 9.30am on Boxing Day in each year);
4.5on Father’s Day for the whole of the weekend as referred to in paragraph 4.1 hereof (with the husband’s time to be suspended for the entire weekend for Mother’s Day);
4.6as otherwise agreed between the parties from time to time.
For the purposes of changeovers pursuant to paragraph 4 hereof:
5.1 save where changeovers occur at the children’s school, such changeovers otherwise occur at…

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: Waite & Waite [2007] FamCA 1715
Case: [2007] FamCA 1715
Decision Date: 31 August 2007

CaseChat Overview and Summary

This case involved parenting orders concerning the children B and G. The dispute centred on the arrangements for the children's residence and the responsibilities of the husband and wife. The matter was heard by Watt J.

The court was required to determine the terms of new parenting orders, including the allocation of parental responsibility for major decisions, the primary residence of the children, and the specific time each parent would spend with the children. Additionally, the court considered the wife's proposed relocation of the children and the practical arrangements for communication and information sharing between the parents.

Watt J ordered the discharge of all previous parenting orders. The court established equal shared parental responsibility for major decisions concerning the children's care, welfare, and development. The children were to primarily live with the wife, but with significant and detailed periods of time spent with the husband, including regular weekends, school holidays, and specific holiday periods. The court also permitted the wife to relocate the children to N Primary School and made provisions for both parents to attend school events and receive school-related information. Further orders addressed communication, notification of emergencies, and the exchange of contact details.

Orders

Orders of the court

All previous parenting orders be and are hereby discharged.

The husband and wife have equal shared parental responsibility for making major decisions affecting the care, welfare and development of the children of the marriage B born … December 1999 and G born … May 2001 (“the children”).

Save as provided in paragraph 4 hereof, the children live with the wife.

The children live with the husband as follows:

4.1 For two weekends out of three commencing on Friday 19 October 2007 and Friday 26 October 2007 from school lunchtime (or noon, whichever first occurs) on Friday until 4.00pm on Sunday (to be extended to 4.00pm on Monday) in the event of a non-school day) with the intent that the husband be able to spend Friday afternoon at the children’s school but if the husband does not intend to attend at the children’s school on any particular Friday, he is to notify the wife by no later than 8.00pm on the preceding Wednesday and on any Friday in respect of which notice is given, the husband’s time shall commence at 5.00pm with the wife delivering the children to the L Tourist Information Centre;

4.2 for school term holidays as follows:

4.2.1 for first term for the first half with changeover to occur on the second Saturday, unless otherwise agreed;

4.2.2 for the whole of the second term unless otherwise agreed between the parties;

4.2.3 for the third term for 10 nights with changeover to occur at 4.00pm on the eleventh day unless otherwise agreed.

4.3 for the first half of the long summer vacation;

4.4 for Christmas from 9.30am on Boxing Day until 4.30pm on 28 December in each year (with the wife to spend time with the children from 4.30pm on Christmas Eve until 9.30am on Boxing Day in each year);

4.5 on Father’s Day for the whole of the weekend as referred to in paragraph 4.1 hereof (with the husband’s time to be suspended for the entire weekend for Mother’s Day);

4.6 as otherwise agreed between the parties from time to time.

For the purposes of changeovers pursuant to paragraph 4 hereof:

5.1 save where changeovers occur at the children’s school, such changeovers otherwise occur at the L Tourist Information Centre, unless otherwise agreed;

5.2 weekend time shall be suspended during school holiday periods and resume on the second Friday following the resumption of school term.

The husband shall be at liberty to communicate with the children or either of them by telephone, webcam, email, letters, cards or gifts on a reasonable basis.

The wife be permitted to relocate the children to N in the East Gippsland area from the conclusion of the holiday time to be spent with the husband in accordance with paragraph 4.2.3 of this order.

The husband and the wife forthwith do all acts and things necessary and sign all necessary documents to enrol the children at N Primary School for attendance at that school from 8 October 2007.

The husband be authorised to request from the Principal of the N Primary School to obtain copies of school reports, newsletters, event notices and application forms for school photographs at his expense, if any.

10. The husband and the wife be at liberty to attend school events, assemblies, presentations, concerts, parent/teacher interviews and sporting and extra-curricular events and competitions ordinarily attended by parents.

11. The husband and the wife each inform the other party of any substantial injury and emergency medical and dental treatment concerning the children or either one of them, whilst they are in their respective care, as soon as practicable.

12. The husband and the wife each keep the other advised of their respective telephone contact numbers and advise the other of any change of landline, email address and/or mobile telephone contact numbers 24 hours prior to any such change.

13. Otherwise all extant applications be otherwise dismissed and removed from the list of cases awaiting final hearing.

14. Pursuant to s.65DA(2) and s.62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

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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