Whitlock and Whitlock - [2014] FCCA 448

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITLOCK & WHITLOCK

[2014] FCCA 448

Catchwords:
FAMILY LAW – Children – Relocation – children’s best interests – primary and additional considerations – meaningful relationships – children’s views – whether one consideration can be determinative.

Legislation:

Family Law Act 1975, ss. 60B, 60CA, 60CC, 65DAA

Bolitho and Cohen (2005) FLC 93-224
Bright and Bright v Bright and Mackley (1995) FLC 92-570
Champness & Hanson (2009) FLC 93-407
Doyle and Doyle (1992) FLC 92-286
G and C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA
H and H (2003) FLC 93-168
H v W (1995) FLC 92-598
M & S (2007) FLC 93-313
McCall & Clark (2009) FLC 93-405
Mazorski and Albright (2007) 37 Fam LR 518
Moose & Moose (2008) FLC 93-375
Morgan & Miles (2007) FLC 93-343

MRR v GR (2010) FLC 93-424, [2010] HCA 4

P & P [2006] FMCAfam 518
Sigley & Evor [2011] FamCAFC 22
Stevens and Lee (1991) FLC 92-201

Applicant:

MS WHITLOCK

Respondent:

MR WHITLOCK

File Number:

LNC 768 of 2010

Judgment of:

Judge Roberts

Hearing dates:

3 and 4 February 2014

Date of Last Submission:

4 February 2014

Delivered at:

Launceston

Delivered on:

13 March 2014

REPRESENTATION

Counsel for the Applicant:

Mr D Walker

Solicitors for the Applicant:

Walker Henderson Lawyers

Counsel for the Respondent:

Mr P McVeity

Solicitors for the Respondent:

McVeity & Associates

ORDERS

That MS WHITLOCK (“the mother”) and MR WHITLOCK (“the father”) have equal shared parental responsibility for A born (omitted) 2003 and B born (omitted) 2004 (“the children”).
That in the event that the mother remains living in the vicinity of X in Tasmania:
(a)the children are to live with the mother and father on a week about basis during school terms with change-overs to be on a day to be agreed between the mother and the father but failing agreement on Fridays; and
(b)change-overs on school days are to take place before or after school (as the case may be) and changeovers on non-school days are to take place at or about 5.00pm.
That in the event that the mother does not remain living in the vicinity of X in Tasmania:
(a)the children are to live with the father; and
(b)during school terms the children are to spend time with and communicate with the mother each second weekend from after school on Friday until 5.00pm on Sunday (extended on long weekends to 5.00pm on Monday) with change-overs to take place at the (omitted) or such other place as the parties may agree.
That during school holiday periods the children are to live with each parent on a week and week about basis.
That in 2014 and in each alternate year thereafter the children are to live with the mother from 3.00pm on Christmas Eve to 3.00pm on Christmas Day and with the father from 3.00pm on Christmas Day until 5.00pm on Boxing Day.
That in 2015 and in each alternate year thereafter the children are to live 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.

Continue reading Whitlock and Whitlock

Details

AGLC: Whitlock and Whitlock [2014] FCCA 448
Case: [2014] FCCA 448
Decision Date: 13 March 2014

CaseChat Overview and Summary

In *Whitlock and Whitlock*, Judge Roberts of the Family Court of Australia made orders concerning the parental responsibility and living arrangements for two children, A and B. The dispute concerned the practical arrangements for the children's care and time spent with each parent following the breakdown of the parents' relationship.

The court was required to determine the nature of the parental responsibility to be shared by the mother and father, and to establish specific living arrangements for the children, including the division of time during school terms, school holidays, and significant annual events such as Christmas and Easter. The court also needed to address arrangements for birthdays and specific days dedicated to each parent.

Judge Roberts ordered that the mother and father have equal shared parental responsibility for the children. The primary living arrangements were conditional on the mother's residence; if she remained in the vicinity of X in Tasmania, the children would live with each parent on a week-about basis during school terms, with specific changeover times. If the mother moved away from X, the children were to live with the father, with the mother having defined time with them each second weekend during school terms. Further orders detailed the division of time during school holidays, Christmas, Easter, birthdays, and Mother's and Father's Days, aiming to ensure consistent and meaningful contact with both parents.

Orders

Orders of the court

That MS WHITLOCK (“the mother”) and MR WHITLOCK (“the father”) have equal shared parental responsibility for A born (omitted) 2003 and B born (omitted) 2004 (“the children”).

That in the event that the mother remains living in the vicinity of X in Tasmania:

(a) the children are to live with the mother and father on a week about basis during school terms with change-overs to be on a day to be agreed between the mother and the father but failing agreement on Fridays; and

(b) change-overs on school days are to take place before or after school (as the case may be) and changeovers on non-school days are to take place at or about 5.00pm.

That in the event that the mother does not remain living in the vicinity of X in Tasmania:

(a) the children are to live with the father; and

(b) during school terms the children are to spend time with and communicate with the mother each second weekend from after school on Friday until 5.00pm on Sunday (extended on long weekends to 5.00pm on Monday) with change-overs to take place at the (omitted) or such other place as the parties may agree.

That during school holiday periods the children are to live with each parent on a week and week about basis.

That in 2014 and in each alternate year thereafter the children are to live with the mother from 3.00pm on Christmas Eve to 3.00pm on Christmas Day and with the father from 3.00pm on Christmas Day until 5.00pm on Boxing Day.

That in 2015 and in each alternate year thereafter the children are to live with the father from 3.00pm on Christmas Eve to 3.00pm on Christmas Day and with the mother from 3.00pm on Christmas Day until 5.00pm on Boxing Day.

That at Easter the parent scheduled to spend time with the children on Good Friday is to have the children from after school on the Thursday prior to Good Friday until the following Wednesday at 5.00pm and the other parent is to spend time with the children from Wednesday at 5.00pm until the commencement of school on the following Monday.

That on the children’s and the parent’s birthdays the parent with whom the children are not living on the relevant day is to spend time with the children from after school (or 5.00pm if it is a non-school day) until the commencement of school the following day (or 5.00pm if it is a non-school day).

That the children are to spend Mothers’ Day with the mother from 5.00pm on the Saturday preceding Mothers’ Day until 5.00pm on Mothers’ Day.

10.

That the children are to spend Fathers’ Day with the father from 5.00pm on the Saturday preceding Fathers’ Day until 5.00pm on Fathers’ Day.

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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