Whiteside and Whiteside - [2014] FCCA 818

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITESIDE & WHITESIDE

[2014] FCCA 818

Catchwords:
FAMILY LAW – Interim parenting relocation on urgent medical grounds – best interest considerations for four young children – Mother’s decision to relocate said to have been made after taking trip to (omitted) Queensland from country New South Wales – likely effect on children’s relationship with ‘left behind parent’.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(3)(a) – (i), 61DA, 65DAA

Federal Circuit Court Rules 2001, Division 2.1

A v A: A Relocation Approach (2000) FLC ¶93-035
Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376
Collu & Rinaldo [2010] FamCAFC 53
McCall v Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Morgan v Miles (2008) 38 Fam LR 275
MRR v GR (2010) 240 CLR 461
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439

Applicant:

MR WHITESIDE

Respondent:

MS WHITESIDE

File Number:

CAC 236 of 2014

Judgment of:

Judge Neville

Hearing date:

28 February 2014

Date of Last Submission:

12 March 2014

Delivered at:

Canberra

Delivered on:

3 April 2014

REPRESENTATION

Solicitors for the Applicant:

Maggie Orman Pty Ltd, Wagga Wagga (until 25 March 2014; then Father self-represented)

Solicitors for the Respondent:

Jones Mitchell Lawyers, Southport, Qld

Solicitors for the Independent Children's Lawyer:

Strong Law Pty Ltd, Canberra

ORDERS

UNTIL FURTHER ORDER

The parents are to have equal shared parental responsibility for all of the children W (born (omitted) 2006), X (born (omitted) 2006), Y (born (omitted) 2011) and Z (born (omitted) 2013) (“the children”).
The children Z and Y are to live with the Mother in Queensland.
The Father may speak with and or spend time with Z and Y when he is able to be in Queensland with arrangements to be made by prior agreement with the Mother upon giving 48 hours’ notice.
The Father may speak with Z and Y regularly (to the degree possible) by Skype as agreed.
Absent any other agreement in writing between the parties, until the end of the NSW first term school holidays, the children W and X are to live with the Mother. Thereafter, as from the last weekend of the NSW first term school holidays, they are to reside with their Father and resume their schooling in (omitted) and communicate with their Mother via Skype and/or telephone at least each alternate day.
Pursuant to section 62G(2) of the Family Law Act1975 (‘the Act’) the parties and the children of the relationship attend upon a family consultant in the Brisbane Registry on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.
The matter be listed for an expedited hearing on a date and venue to be advised.
The matter be adjourned to a date and time to…

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 Whiteside and Whiteside

Details

AGLC: Whiteside and Whiteside [2014] FCCA 818
Case: [2014] FCCA 818
Decision Date: 3 April 2014

CaseChat Overview and Summary

In the matter of *Whiteside and Whiteside*, heard by Judge Neville, the dispute concerned parenting arrangements for four children: W (born 2006), X (born 2006), Y (born 2011), and Z (born 2013). The orders indicate a significant disagreement between the parents regarding the children's living arrangements and time spent with each parent.

The court was required to determine the most appropriate parenting orders for the children, considering their best interests. This involved deciding on the nature of parental responsibility, where each child would live, and the extent of contact the father would have with the children, particularly given the geographical separation between the parents. The court also needed to address the need for professional assessment of the family's circumstances.

Judge Neville made orders for equal shared parental responsibility for all children. The younger children, Y and Z, were ordered to live with the mother in Queensland, with the father having supervised or agreed-upon time when he was in Queensland. The older children, W and X, were to live with the mother until the end of the NSW first term school holidays, after which they were to reside with their father and resume schooling in a different location, maintaining regular communication with their mother. Crucially, the court ordered the parties and children to attend a family consultant for a Family Report addressing issues under section 60CC of the *Family Law Act 1975*, and listed the matter for an expedited hearing.

Orders

Orders of the court

UNTIL FURTHER ORDER

The parents are to have equal shared parental responsibility for all of the children W (born (omitted) 2006), X (born (omitted) 2006), Y (born (omitted) 2011) and Z (born (omitted) 2013) (“the children”).

The children Z and Y are to live with the Mother in Queensland.

The Father may speak with and or spend time with Z and Y when he is able to be in Queensland with arrangements to be made by prior agreement with the Mother upon giving 48 hours’ notice.

The Father may speak with Z and Y regularly (to the degree possible) by Skype as agreed.

Absent any other agreement in writing between the parties, until the end of the NSW first term school holidays, the children W and X are to live with the Mother. Thereafter, as from the last weekend of the NSW first term school holidays, they are to reside with their Father and resume their schooling in (omitted) and communicate with their Mother via Skype and/or telephone at least each alternate day.

Pursuant to section 62G(2) of the Family Law Act 1975 (‘the Act’) the parties and the children of the relationship attend upon a family consultant in the Brisbane Registry on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.

The matter be listed for an expedited hearing on a date and venue to be advised.

The matter be adjourned to a date and time to be advised.

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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