WGOC & GH - [2015] FamCA 356

FAMILY COURT OF AUSTRALIA

WGOC & GH

[2015] FamCA 356

FAMILY LAW – CHILDREN – With whom the children live – where the children are both teenagers – where one child consistently absconds from the father’s care – where the other child does not – where the children live with different parents – where the father asserts the mother undermines his relationship with the child – where child’s time to be spent with father subject to his wishes – where time to be spent between the other child and the mother.

FAMILY LAW – ORDERS – CONTRAVENTION – application dismissed

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 61DA, 65D, 65AA, 65DAB

APPLICANT:

WGOC

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

11408

2009

DATE DELIVERED:

15 May 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

7 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wilson

SOLICITORS FOR THE APPLICANT:

Kelly Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Davies of Legal Aid Queensland

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous parenting Orders are discharged.
The child X, born … 1998, live with the father.
The child Y, born … 2000, live with the mother.
The father shall have sole parental responsibility for the major long term issues for the child X, born … 1998, with such issues to include but not be limited to:
(a)       the child’s education;
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health.
The mother shall have sole parental responsibility for the major long term issues for the child Y, born … 2000, with such issues to include but not be limited to:
(a)       the child’s education;
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health.
Each parent advise the other in writing of any significant decision made in the exercise of that parent’s sole parental responsibility.
The child X spend time and communicate with the mother at all times as may be agreed between the parties in writing and, failing agreement:
(a)commencing Friday 22 May 2015: each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday;
(b)for one half of all Queensland gazetted school holiday periods in each year, to be the first half of the holidays in even-numbered years and the second half of holidays in odd-numbered years;
(c)on the weekend on which Mother’s Day occurs: from 5.00 pm Friday until 5.00 pm Sunday;
(d)by telephone: at 5.00 pm each Friday afternoon, when he is not otherwise spending time with her, at 5.00 pm on the child’s birthday each year and at all such times as he indicates he wishes to speak to the mother or his brother Y.
In order to facilitate X spending time with the mother in the manner outlined above:
(a)the father, or his representative, will deliver X to Pioneer Park, Town Z by 5.00 pm…

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: [2015] FamCA 356
Decision Date: 15 May 2015

CaseChat Overview and Summary

The case of WGOC & GH involved an application concerning parenting orders for two children, X and Y. The proceedings were before Hogan J of the Family Court of Australia. The dispute centred on the living arrangements and parental responsibilities for the children following the breakdown of their parents' relationship.

The court was required to determine the primary residence of each child, the allocation of parental responsibility for major long-term issues, and the specific arrangements for each child to spend time and communicate with the non-resident parent. Additionally, the court considered the need for therapeutic intervention for one of the children and the general obligations of the parents regarding communication, notification of significant decisions, and the provision of information about the children's health and education.

Hogan J discharged all previous parenting orders and made new final orders. The court ordered that child X live with the father and have sole parental responsibility for X's major long-term issues, including education, religious and cultural upbringing, and health. Conversely, child Y was ordered to live with the mother, who was granted sole parental responsibility for Y's major long-term issues. Detailed provisions were made for the time each child would spend with the non-resident parent, including specific weekend and holiday arrangements, and communication protocols. The court also mandated counselling for child Y to assist in repairing his relationship with his father and outlined various information-sharing obligations between the parents.

The final orders also included provisions for obtaining a passport for child Y, discharged the Independent Children's Lawyer, and dismissed all outstanding applications.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous parenting Orders are discharged.

The child X, born … 1998, live with the father.

The child Y, born … 2000, live with the mother.

The father shall have sole parental responsibility for the major long term issues for the child X, born … 1998, with such issues to include but not be limited to:

(a) the child’s education;

(b) the child’s religious and cultural upbringing; and

The mother shall have sole parental responsibility for the major long term issues for the child Y, born … 2000, with such issues to include but not be limited to:

(a) the child’s education;

(b) the child’s religious and cultural upbringing; and

Each parent advise the other in writing of any significant decision made in the exercise of that parent’s sole parental responsibility.

The child X spend time and communicate with the mother at all times as may be agreed between the parties in writing and, failing agreement:

(a) commencing Friday 22 May 2015: each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday;

(b) for one half of all Queensland gazetted school holiday periods in each year, to be the first half of the holidays in even-numbered years and the second half of holidays in odd-numbered years;

(d) by telephone: at 5.00 pm each Friday afternoon, when he is not otherwise spending time with her, at 5.00 pm on the child’s birthday each year and at all such times as he indicates he wishes to speak to the mother or his brother Y.

In order to facilitate X spending time with the mother in the manner outlined above:

(a) the father, or his representative, will deliver X to Pioneer Park, Town Z by 5.00 pm on Fridays and at the commencement of X’s holiday time with the mother; and

(b) the mother, or her representative, will deliver X to the Suburb A train station at 5.00 pm on Sundays and at the conclusion of X’s holiday time with her.

Subject to his wishes, the child Y spend time and communicate with the father as follows:

(a) commencing Friday 29 May 2015: each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday;

(b) for one half of all Queensland gazetted school holiday periods in each year, to be the second half of the holidays in even-numbered years and the first half of the holidays in odd-numbered years.

(d) by telephone: at 5.00 pm each Friday afternoon, when he is not otherwise spending time with him, at 5.00 pm on the child’s birthday each year and at all such times as the child indicates he wishes to speak to the father or his brother X.

10.

In order to facilitate Y spending time with the father in the manner outlined above:

(a) the mother, or her representative, will deliver Y to the Suburb A train station at 5.00 pm on Fridays and at the commencement of Y’s holiday time with the father; and

(b) the father, or his representative, will deliver Y to Pioneer Park, Town Z at 5.00 pm on Sundays and at the conclusion of Y’s holiday time with him.

11.

The time each child is to spend with the parent with whom that child is not living shall, to the extent that it is practicable, take place so that the children X and Y spend weekends and holidays together.

12.

Each child shall be at liberty to communicate by telephone and/or email at all reasonable times with the parent with whom that child is not living.

13.

The mother shall ensure that Y attends upon a counsellor or psychologist, nominated by the Independent Children’s Lawyer, for the purpose of assisting Y to repair his relationship with his father and:

(a) such counselling shall continue for as long as the therapist considers appropriate; and

(b) each party shall participate in the counselling in a manner deemed appropriate by the therapist.

14.

The parties have liberty to provide a copy of the Reasons for Judgment delivered 15 May 2015 to any counsellor or psychologist engaged in providing the counselling directed by this Order.

15.

The mother and father shall:

(a) keep the other informed at all times of a contact telephone number and an email address at which they can be contacted and advise the other of any change to the same within 48 hours of such change; and

(b) notify the other at least twenty-one (21) days prior to relocating the general location of their residence; and

(d) keep each other informed at all times of the names and addresses of any educational facility at which the children attend; and

(e) keep each other informed at all times of the names and addresses of medical practitioners upon whom, or medical practices at which, the children regularly attend.

16.

By this Order, any medical practitioner upon whom each child attends is hereby authorised to provide to each party, at that party’s request and cost, all such information that such medical practitioner may lawfully provide about the child.

17.

By this Order, any educational facility at which each child attends is hereby authorised to provide to each party, at that party’s request and cost, all information about the child’s education, progress and participation in school or school-related activities.

18.

A Registrar of the Family Court of Australia is appointed pursuant to s106A of the Family Law Act 1975 (Cth) to sign in lieu of the father any document needed to obtain a passport for the child Y.

19.

The Independent Children’s Lawyer is discharged.

20.

All outstanding Applications are 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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