Wheeler and Wheeler - [2016] FCCA 148

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHEELER & WHEELER

[2016] FCCA 148

Catchwords:
FAMILY LAW – Parenting – time that child aged 13 years should spend with each parent.

Legislation:

Family Law Act 1975, ss.60C, 60CC, 61DA, 61DAA

Goode & Goode (2006) FLC93 – 286
R v R (2000) 25 Fam LR 712
MRR & GR (2010) 240 CLR 461

Applicant:

MR WHEELER

Respondent:

MS WHEELER

File Number:

PAC 3315 of 2013

Judgment of:

Judge Newbrun

Hearing dates:

25, 27 May 2015 and 1 June 2015

Date of Last Submission:

1 June 2015

Delivered at:

Parramatta

Delivered on:

12 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr Morley

Solicitors for the Applicant:

Brazel Moore Lawyers

Counsel for the Respondent:

Mr Weaver

Solicitors for the Respondent:

Shepherds The Family Law Specialists

ORDERS

That the parents shall have equal shared parental responsibility for the long term care, welfare and development of the children, X born (omitted) 1998 and Y born (omitted) 2002.
That the child X live with and spend time with the parents in accordance with his wishes.
That the father spend time with Y as follows:
(a)During school terms, each alternate weekend from after school Friday until commencement of school Wednesday, commencing the first weekend after the date of these Orders.
That during school holiday periods Order 3 is suspended and Y will spend time with each parent as follows:
(a)For one half of the school holiday periods by agreement and absent any agreement, with the father for the first half in odd numbered years and the second half in even numbered years;
(b)For one half of the school holiday periods by agreement and absent any agreement, with the mother for the first half in even numbered years and the second half in odd numbered years.
Notwithstanding Order 4, Y will spend time with each parent for Christmas as follows:
(a)With the father from 3pm Christmas Eve until 2pm Christmas Day commencing 2016 and each odd year thereafter and from 2pm Christmas Day until 3pm Boxing Day commencing 2017 and each even year thereafter;
(b)With the mother from 2pm Christmas Day until 3pm Boxing Day commencing 2016 and each odd year thereafter and from 3pm Christmas Eve until 2pm Christmas Day commencing 2017 and each even year thereafter.
Notwithstanding Order 4 and failing agreement between the parents, Y will spend time with each parent for the following occasions:
(a)At Easter, with the father commencing 6pm Thursday until 6pm Monday commencing 2016 and each even year thereafter.
(b)At Easter, with the mother commencing 6pm Thursday until 6pm Monday commencing 2017 and each odd year thereafter.
(c)On Y’s birthday from 3pm to 7pm with the party with whom Y is not residing that day.
(d)On each parent’s birthday from 3pm to 7pm should Y not be residing with that parent on that day.
If Father’s Day is a day when Y is spending time with the mother then such time shall be suspended and Y shall spend time with the father from…

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] FCCA 148
Decision Date: 12 February 2016

CaseChat Overview and Summary

This matter concerned an application by the parents, Wheeler and Wheeler, regarding the parenting arrangements for their two children, X and Y. The court was required to make orders concerning the children's living arrangements, time spent with each parent, and related matters.

The primary legal issues before the court were to determine the most appropriate orders for the children's care, welfare, and development, specifically addressing issues of equal shared parental responsibility, the children's living arrangements, and the time each parent would spend with the children. The court also had to consider orders relating to communication between parents regarding the children's education and health, geographical restrictions on the parents' residence, and prohibitions against denigration.

Judge Newbrun made orders establishing equal shared parental responsibility for the long-term care, welfare, and development of both children. The orders stipulated that child X would live with and spend time with the parents in accordance with X's wishes. For child Y, specific arrangements were detailed for time spent with the father during school terms, including alternate weekends. School holiday arrangements were also outlined, with provisions for agreement between the parties and default arrangements for odd and even years. Further detailed orders were made concerning time spent with each parent during Christmas, Easter, and on birthdays, as well as provisions for Father's Day and Mother's Day. The court also made orders regarding changeovers, geographical restrictions on residence, communication with schools and medical professionals, notification of residence and contact details, telephone contact, and a prohibition against denigrating the other parent.

Orders

Orders of the court

That the parents shall have equal shared parental responsibility for the long term care, welfare and development of the children, X born (omitted) 1998 and Y born (omitted) 2002.

That the child X live with and spend time with the parents in accordance with his wishes.

That the father spend time with Y as follows:

(a) During school terms, each alternate weekend from after school Friday until commencement of school Wednesday, commencing the first weekend after the date of these Orders.

That during school holiday periods Order 3 is suspended and Y will spend time with each parent as follows:

(a) For one half of the school holiday periods by agreement and absent any agreement, with the father for the first half in odd numbered years and the second half in even numbered years;

(b) For one half of the school holiday periods by agreement and absent any agreement, with the mother for the first half in even numbered years and the second half in odd numbered years.

Notwithstanding Order 4, Y will spend time with each parent for Christmas as follows:

(a) With the father from 3pm Christmas Eve until 2pm Christmas Day commencing 2016 and each odd year thereafter and from 2pm Christmas Day until 3pm Boxing Day commencing 2017 and each even year thereafter;

(b) With the mother from 2pm Christmas Day until 3pm Boxing Day commencing 2016 and each odd year thereafter and from 3pm Christmas Eve until 2pm Christmas Day commencing 2017 and each even year thereafter.

Notwithstanding Order 4 and failing agreement between the parents, Y will spend time with each parent for the following occasions:

(a) At Easter, with the father commencing 6pm Thursday until 6pm Monday commencing 2016 and each even year thereafter.

(b) At Easter, with the mother commencing 6pm Thursday until 6pm Monday commencing 2017 and each odd year thereafter.

(d) On each parent’s birthday from 3pm to 7pm should Y not be residing with that parent on that day.

If Father’s Day is a day when Y is spending time with the mother then such time shall be suspended and Y shall spend time with the father from 8am until 8pm.

If Mother’s Day is a day when Y is spending time with the father then such time shall be suspended and Y shall spend time with the mother from 8am until 8pm.

All changeovers are to occur as mutually agreed by the parties and failing agreement after school at (omitted) College and (omitted) Primary School.

10.

That both parties be restrained from moving from the (omitted) area without the written consent of the other party or by Order of the Court.

11.

That each party do all such things, sign all such instruments, documents, authorities and the like to ensure that:

(a) Each party be at liberty to communicate directly with Y’s pre-school/school teachers and other pre-school/school authorities as to Y’s progress at pre-school/school and any problems being experienced by Y and to enable Y’s pre-school/school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events;

(b) Each party is at liberty to communicate directly with any treating professional as to any health related treatment being undertaken by Y without necessarily first referring to the other parent and both parties are to keep the other party informed of any specialist medical treatment or hospitalisation of Y.

12.

Each party is to keep the other informed of all sporting, religious, cultural and educational activities in which Y is involved from time to time.

13.

That each party at all times keep the other informed of all medical and dental and other health related treatments being undertaken by Y and the identity of the treating professionals.

14.

That the parties notify each other of their place of residence and telephone numbers as it stands from time to time, within 14 days of having changed their place of residence and telephone numbers.

15.

That either party is to allow the other party to have liberal telephone contact with Y within reasonable hours.

16.

That the parties be restrained from denigrating the other party or the other party’s family in the presence or within hearing of Y.

17.

That each parent ensure when the child Y is in their care, that she is taken to her extracurricular activities, including sporting activities punctually.

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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