Webster and Downer and Anor - [2016] FamCA 822

FAMILY COURT OF AUSTRALIA

WEBSTER & DOWNER AND ANOR

[2016] FamCA 822

FAMILY LAW – CHILDREN – Final parenting orders –– where applicant and parents cannot agree on circumstances of the child communicating and spending time with the applicant in Australia and the USA – after mother relocates with six year old child to the USA where the father resides

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Evidence Act 1995 (Cth)

Donnell & Dovey [2010] FamCAFC 15
Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153

APPLICANT:

Mr Webster

FIRST RESPONDENT:

Ms Downer

SECOND RESPONDENT:

Mr Ryan

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

10936

2015

DATE DELIVERED:

23 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

15 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Natalie Vogel

THE APPLICANT:

In person

COUNSEL FOR THE FIRST RESPONDENT:

Mr Martin Bartfeld QC

SOLICITOR FOR THE FIRST RESPONDENT:

Carew Counsel

COUNSEL FOR THE SECOND RESPONDENT:

Mr Robin Smith

SOLICITOR FOR THE SECOND RESPONDENT:

Lander & Rogers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Peter O’Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the child B born … 2009 (“the child”) spend time with the applicant as follows:
(a)       if the child travels to Melbourne temporarily for a holiday, on one occasion in each month that the child spends in Australia for a period of six hours during the day, with either of the maternal grandparents in substantial attendance for the first hour of contact. The time is to commence at such time or place as agreed between the parents and the applicant;
(b)       in default of agreement between the parties, changeover in Melbourne is to take place at McDonalds in Suburb C;
(c)       if the applicant travels to the United States of America, on one occasion in each month of any holiday period of the applicant, for a period of six hours during the day, with the second respondent father or either of the paternal uncles to be in substantial attendance for the first hour of contact. The time is to commence at such time or place as agreed between the parents and the applicant.
That the child communicate with the applicant via Skype, FaceTime or other electronic means on four occasions annually, being one occasion on the child’s birthday, one occasion during the summer school holidays in the United States of America, one occasion during Easter holidays and one occasion during Christmas holidays, and that the first respondent mother place the call to a number, Skype username or other equivalent video call contact identifier to be provided by the applicant. The timing of the communication is to be by agreement between the parents and the applicant and failing agreement at 6:30pm City D time.
That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that…

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

Case: [2016] FamCA 822
Decision Date: 23 September 2016

CaseChat Overview and Summary

In *Webster and Downer and Anor*, Thornton J of the Federal Circuit and Family Court of Australia considered applications concerning the time a child, B, born in 2009, would spend with the applicant, and the nature of their communication. The dispute involved the arrangements for the child's contact with the applicant, who appears to be a relative residing overseas, and the communication methods between them.

The court was required to determine the specific terms of the child's time with the applicant, both when the child was in Australia and when the applicant was in the United States. Additionally, the court needed to establish the frequency and method of electronic communication between the child and the applicant.

Thornton J made orders for the child to spend time with the applicant on one occasion each month when the child was in Australia for a six-hour period, with specific provisions for attendance by grandparents during the initial hour of contact and default arrangements for changeovers. Similar provisions were made for contact when the applicant travelled to the United States, with attendance by the child's father or paternal uncles. The court also ordered specific dates for electronic communication, including the child's birthday and various holiday periods, with default timing arrangements if the parents and applicant could not agree. All other extant applications were dismissed.

Orders

Orders of the court

That the child B born … 2009 (“the child”) spend time with the applicant as follows:

(a) if the child travels to Melbourne temporarily for a holiday, on one occasion in each month that the child spends in Australia for a period of six hours during the day, with either of the maternal grandparents in substantial attendance for the first hour of contact. The time is to commence at such time or place as agreed between the parents and the applicant;

(b) in default of agreement between the parties, changeover in Melbourne is to take place at McDonalds in Suburb C;

(c) if the applicant travels to the United States of America, on one occasion in each month of any holiday period of the applicant, for a period of six hours during the day, with the second respondent father or either of the paternal uncles to be in substantial attendance for the first hour of contact. The time is to commence at such time or place as agreed between the parents and the applicant.

That the child communicate with the applicant via Skype, FaceTime or other electronic means on four occasions annually, being one occasion on the child’s birthday, one occasion during the summer school holidays in the United States of America, one occasion during Easter holidays and one occasion during Christmas holidays, and that the first respondent mother place the call to a number, Skype username or other equivalent video call contact identifier to be provided by the applicant. The timing of the communication is to be by agreement between the parents and the applicant and failing agreement at 6:30pm City D time.

That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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