WICKENBY & WICKENBY - [2012] FamCA 1074

FAMILY COURT OF AUSTRALIA

WICKENBY & WICKENBY

[2012] FamCA 1074

FAMILY LAW – PROCEDURE – After a trial and while judgment in principal proceedings reserved mother applied for stay of judgment pending the hearing of a newly filed contravention application – Decision made to proceed to judgment in the principal proceedings in relation to mother’s application for relocation of child’s residence and in relation to parental responsibility and to stay the judgment in relation to all other parenting matters pending outcome of the mother’s contravention application

FAMILY LAW – CHILDREN – BEST INTERESTS – RELOCATION – Competing parenting orders sought by father and mother – Mother sought to relocate child’s residence to Western Australia – Father lives near Brisbane – Mother’s partner lives in Western Australia – Mother and partner propose to marry December 2012 – Meaningful relationship – Whether need to protect child from harm – Parental responsibility – Order made for equal shared parental responsibility for the major long-term issues – No proposal for equal time – Whether substantial and significant time in child’s best interests and reasonably practicable – Order made that mother may relocate child’s residence to Western Australia – All other matters in the principal proceedings in particular the time the child should spend with the father and communicate with the father stayed pending further trial directions

FAMILY LAW – CHILDREN – INTERIM ORDERS – Interim orders made pending disposal of mother’s new applications

Family Law Act 1975 (Cth) ss 60CC, 61DA(1), 65DAA(1), (2) and (5)

AMS v AIF (1999) 199 CLR 160
Carlyle & Muldoon [2011] FamCA 51
Collu & Rinaldo [2010] FamCAFC 53
D v SV (2003) FLC 93-137
G & C [2006] FamCA 994
Hall & Hall (1979) FLC 90-713
Hanrahan & Silver [2010] FamCAFC 257
Hepburn & Noble (2010) FLC 93-438
Mazorski & Albright [2007] 37 FamLR 518
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Muldoon & Carlyle [2012] FamCAFC 135
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor v Barker (2007) FLC 93-345

APPLICANT:

Mr Wickenby

RESPONDENT:

Ms Wickenby

FILE NUMBER:

(P)BRC

2009

DATE DELIVERED:

19 December 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

3, 4, 5 and 8 October 2012, 27 November 2012

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Laws

SOLICITOR FOR THE RESPONDENT:

Ms Gagliardi
Odyssey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Davies
Legal Aid Queensland

Orders

IT IS ORDERED

Child’s living arrangements (orders made 27 November 2012)

The child B born … July 2002 (the child) live with the mother.

The mother may relocate the child’s residence to C Town Western Australia on or after 18 December 2012.

AND IT IS FURTHER ORDERED
Parental responsibility

The parties have equal shared parental responsibility for the child for decisions in relation to the major long-term issues concerning her education both current and future,…

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

AGLC: WICKENBY & WICKENBY [2012] FamCA 1074
Case: [2012] FamCA 1074
Decision Date: 19 December 2012

CaseChat Overview and Summary

In the matter of *Wickenby & Wickenby*, O'Reilly J of the Family Court of Australia considered competing parenting orders sought by a mother and father concerning their child. The mother sought to relocate the child's residence to Western Australia, where her partner resided and with whom she proposed to marry. The father lived near Brisbane. While judgment in the principal proceedings was reserved, the mother applied for a stay of judgment pending the hearing of a newly filed contravention application.

The court was required to determine the legal issues surrounding the mother's application for relocation of the child's residence, parental responsibility, and whether to grant a stay of judgment in relation to certain parenting matters. Specifically, the court had to consider the child's best interests, including the meaning of a meaningful relationship, the need to protect the child from harm, and whether proposals for the child's time with each parent were substantial, significant, and reasonably practicable. The court also had to address the procedural question of whether to stay the judgment in the principal proceedings pending the outcome of the mother's contravention application.

O'Reilly J reasoned that the child's best interests were paramount. The court made orders for equal shared parental responsibility for major long-term issues, including education, religious and cultural upbringing, health, name, and significant changes to living arrangements. The court found that the mother's proposal for relocation to Western Australia was in the child's best interests, and therefore ordered that the mother may relocate the child's residence. However, in light of the mother's contravention application, the court ordered a stay of judgment in relation to all other parenting matters, particularly the child's time with and communication with the father, pending further trial directions. Interim orders were made for the child's time with the father until further order.

Orders

Orders of the court

IT IS ORDERED

Child’s living arrangements (orders made 27 November 2012)

The child B born … July 2002 (the child) live with the mother.

The mother may relocate the child’s residence to C Town Western Australia on or after 18 December 2012.

AND IT IS FURTHER ORDERED

Parental responsibility

The parties have equal shared parental responsibility for the child for decisions in relation to the major long-term issues concerning her education both current and future, religious and cultural upbringing, health, name and any changes to her living arrangements that may make it significantly more difficult for her to spend time with the parties or either of them.

In the exercise of their equal shared parental responsibility concerning the child in relation to decisions concerning those major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.

In relation to such consultations:

a. the parent wishing to make a proposal make it in writing to the other parent, setting out the advantages of the proposal perceived by that parent and reasoning supporting it

b. the other parent respond in writing to the proposal by either agreeing with it or making a different proposal, setting out the advantages of any different proposal and reasoning supporting it

c. if after such consultation a joint decision is not able to be made the parties are to consult a family law dispute resolution practitioner to assist them to resolve the issue.

The parties each be responsible for the child’s day to day care while the child is with each of them.

In relation to religion the parties may each take and permit the child to participate in religious activities, occasions, special days and special day observances according to that party’s choice while the child is with that party.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER

Interim arrangements for child to spend time with and communicate with father

UPON THE UNDERTAKING OF THE FATHER FILED 16 NOVEMBER 2011

The child spend time with and communicate with the father as may be agreed between the parties but failing agreement:

a. by telephone and/or Skype on each Tuesday, Thursday and Sunday between 6pm and 7pm Western Australia time, the mother to ensure that the child initiates the communication with the father

b. by text as may be initiated by the child or the father

c. commencing Easter 2013, 10 days in South East Queensland in each of the child’s Easter, June/July and September/October school holiday periods (or equivalent according to the child’s Western Australia school holiday periods) and 3 weeks of the child’s Christmas school holiday period

d. 4 days in approximately mid term during each of the child’s school terms in Western Australia, such to occur from 10am on a Friday to 4pm on the following Monday, with changeover for these mid term occasions to occur in Perth.

The parties share equally the travel costs for the child in relation to order 8 c and d.

10.

When the child spends with the father he permit her to make such reasonable communication with the mother as the child may wish to initiate, and permit the child to receive communications from the mother on each Tuesday, Thursday and Sunday on which the child is spending time with him, between 6pm and 7pm Queensland time when the child is in Queensland and between 6pm and 7pm Western Australia time if the child and the father should be in Western Australia.

11.

Each party must afford the child privacy during all communication time.

12.

Otherwise, interim orders 4, 5, 7, 8, 10 and 11 made 16 November 2011 remain in force; and interim order 3 made 31 January 2012 remains in force.

AND IT IS FURTHER ORDERED

Procedural

13.

Judgment in the principal proceedings otherwise is stayed pending further trial directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The circumstance that the father’s primary case is that the child live with him in or near Brisbane, and the mother’s evidence that if there should be an order that the child live in or near Brisbane she would not move to C Town, makes pertinent also the following in Collu, in particular in relation to the sentence “The Mother would follow the child”:378. In this case, the trial Judge also made orders that provided for the possibility that the Mother would not remain in Dubai and would return to Sydney. In our view, it was clear that the Mother would return to Sydney if an order was made that the child reside in Sydney as proposed by the Father. The Mother would follow the child. Thus, there also had to be consideration of the circumstances of the Mother living in Sydney. This, in turn, would have required analysis of a number of matters which we have already touched upon, such as the Mother’s opportunities for paid employment, accommodation and daily assistance with the care of the child. Again, we are reminded of what was submitted on behalf of the Father about the necessity for the Mother to engage in paid employment. In our view, her Honour did not undertake this analysis. (emphasis added) Earlier, in D v SV (2003) FLC 93-137, the Full Court made clear that an applicant for relocation is not required to “justify” a proposed relocation [64]; and that it is essential that a trial judge give consideration to how the best interests of the children could be advanced in a particular case which, whilst not confined to competing proposals of the parties, nonetheless cannot be “manufactured” in the absence of relevant evidence, in the sense that due account must be taken of the fact that proceedings in the Family Court are conducted in the framework of an adversarial procedure familiar to the common law [pars 17-21]. I would add that the “less adversarial trial” concerning parenting proceedings, or “less adversarial process” concerning parenting proceedings, relates to procedure, not substance, and indeed recognises that parenting proceedings nonetheless in substance essentially are adversarial. It is clear, further, that all of the relevant statutory matters must be considered in relation to all of the proposals of the parties. The father relied on his trial affidavit filed 1 May 2012; his updated trial affidavit filed 25 September 2012; and the affidavits of Ms M, his mother; Mr N, his father; Ms O (married to his brother Mr P); Mr Q, a friend; and Mr R, medical practitioner. He relied also upon a case information document filed 1 May 2012, and an undertaking filed by him on 16 November 2011 which, largely, reiterated his existing undertakings in relation to the interim parenting orders made on 16 November 2011. He relied also upon exs 1 and 2, being respectively a notice to admit facts 12 April 2012 and response 25 April 2012. The father’s trial affidavit filed 1 May 2012 referred to an annexure O, which was omitted from the affidavit, but became ex 8.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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