Webster and Webster (No 3) - [2017] FamCA 815

FAMILY COURT OF AUSTRALIA

WEBSTER & WEBSTER (NO. 3)

[2017] FamCA 815

FAMILY LAW – CHILDREN – Where the parties agree the children should live with the mother and that she should have sole parental responsibility for them – Where the dispute was limited to the extent of holiday time the children should spend with the father and whether this time should occur overseas – Where the father resides in the United Kingdom – Where there is a risk the father will retain the children overseas in contravention of orders – Concluded that although the risk of retention may not be as pronounced as the mother fears, the repercussions are potentially serious – Order restraining the father from removing the children from Australia

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996

Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 65Y, 70M, 111CA, 111CZ
Family Law (Child Protection Convention) Regulations 2003 (Cth)
Family Law Regulations 1984 (Cth)

AR v RN (Scotland) [2015] UKSC 35
Jacks & Samson (2008) FLC 93-387
In the Marriage of L & T (1999) 25 Fam LR 590
Webster & Webster [2017] FamCA 202
Webster & Webster (No.2) [2017] FamCA 557

APPLICANT:

Ms Webster

RESPONDENT:

Mr Webster

INDEPENDENT CHILDREN’S LAWYER:

Ms Escobar, Clayhills Escobar Solicitors

FILE NUMBER:

SYC

5182

2015

DATE DELIVERED:

22 September 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

7 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Escobar, Clayhills Escobar Solicitors

Orders

All former orders made in respect of the following children (“the children”) are discharged:
(a) B, born … 2004; and
(b) C, born … 2006.
All passports held by the Registrar pursuant to Order 6 made on 30 November 2015 shall be forthwith surrendered to the mother.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Subject to the father’s compliance with Order 10 hereof, the parties shall take all reasonable steps to ensure that the children spend time with the father as follows:
(a)For the first half of the Autumn school holidays;
(b)For the whole of the Winter school holidays; and
(c)For one-half of the Summer school holidays, being the first half in the years when the holidays commence in an odd numbered year and the second half in the years when the holidays commence in an even numbered year.
For the purposes of implementation of the preceding order, the school holidays are deemed to commence at 7.00 pm on the…

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 Webster and Webster (No 3)

Details

AGLC: Webster and Webster (No 3) [2017] FamCA 815
Case: [2017] FamCA 815
Decision Date: 22 September 2017

CaseChat Overview and Summary

In *Webster and Webster (No 3)*, Austin J of the Family Court of Australia considered orders concerning two children, B and C. The dispute involved the parental responsibility and living arrangements for the children, as well as their time with each parent and international travel.

The court was required to determine the future parental responsibility and living arrangements for the children, the extent of time the children would spend with the father, and the conditions under which the mother could take the children overseas. Additionally, the court addressed the removal of the children from an Airport Watch List and imposed restrictions on the father regarding international travel with the children.

Austin J ordered that all former orders regarding the children be discharged. The mother was granted sole parental responsibility, and the children were to live with her. The father was granted specific periods of time with the children during school holidays, with detailed provisions for collection, return, and communication. The court also ordered the surrender of passports held by the Registrar to the mother and permitted her to take the children outside of Australia. Crucially, the father was restrained from removing the children from Australia or being with them outside of Australia. Both parents were restrained from denigrating each other in the presence of the children.

Orders

Orders of the court

All former orders made in respect of the following children (“the children”) are discharged:

(a) B, born … 2004; and

(b) C, born … 2006.

All passports held by the Registrar pursuant to Order 6 made on 30 November 2015 shall be forthwith surrendered to the mother.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

Subject to the father’s compliance with Order 10 hereof, the parties shall take all reasonable steps to ensure that the children spend time with the father as follows:

(a) For the first half of the Autumn school holidays;

(b) For the whole of the Winter school holidays; and

(c) For one-half of the Summer school holidays, being the first half in the years when the holidays commence in an odd numbered year and the second half in the years when the holidays commence in an even numbered year.

For the purposes of implementation of the preceding order, the school holidays are deemed to commence at 7.00 pm on the last day of school term, the school holidays are deemed to end at 7.00 pm on the last day before the first day of the new school term, and the mid-point is noon on the day halfway between those first and last days.

For the purposes of implementing these orders, the father or his nominee shall:

(a) Collect the children from the mother’s residence at the commencement of the time due to be spent by the children with him; and

(b) Return the children to the mother’s residence at the conclusion of the time spent by the children with him.

The parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

(a) The father each Wednesday at 6.00 pm when the children are living with the mother, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time; and

(b) The mother each Wednesday at 6.00 pm when the children are spending time with the father, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

The parties shall take all reasonable steps to ensure that the children’s names are removed from the Airport Watch List in force at all of points of arrival and departure in the Commonwealth of Australia and, for that purpose, the parties are granted leave to furnish a sealed copy of these orders to the Australian Federal Police.

10.

The father is restrained from causing or permitting:

(a) The children’s removal from the Commonwealth of Australia; and

(b) The children to be or remain in his physical presence whilst they are outside the Commonwealth of Australia.

11.

Pursuant to s 65Y of the Family Law Act, the mother is permitted to take the children to a place outside the Commonwealth of Australia.

12.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

13.

The mother shall authorise and request the principals of any schools attended by the children to provide to the father, at his expense, copies of the school reports and school photograph order forms relating to the children.

14.

Each party shall forthwith inform the other, and keep the other informed in writing, of their respective current residential address, mobile telephone number and email address.

15.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16.

Any and all other outstanding applications under Part VII of the Family Law Act are dismissed.

17.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.