Wicks and Wicks - [2013] FCCA 2237

FEDERAL CIRCUIT COURT OF AUSTRALIA

WICKS & WICKS

[2013] FCCA 2237

Catchwords:
FAMILY LAW – Parent changing position at trial seeking some “credit” for doing so – evidence of Mother does not support parenting orders sought by her nor does it support her opposition to orders sought by Father – Father’s position supported by Family Consultant and ICL but Mother still opposed Father’s position.

Legislation:

Family Law Act 1975 ss.60CA, 60CC(3)(a)-(m), 65DAA

Mazorski v Albright (2008) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461

Applicant:

MR WICKS

Respondent:

MS WICKS

File Number:

CAC 1296 of 2012

Judgment of:

Judge Neville

Hearing date:

1 July 2013

Date of Last Submission:

1 July 2013

Delivered at:

Canberra

Delivered on:

19 July 2013

REPRESENTATION

Counsel for the Applicant:

Ms J Godtschalk

Solicitors for the Applicant:

Gordon Garling Moffit

Counsel for the Respondent:

Mr C McKeown

Solicitors for the Respondent:	KP Carmody & Co
Solicitor/Advocate Independent Children's Lawyer:	Ms M Burgess
Solicitors for the Independent Children's Lawyer:	Legal Aid ACT

ORDERS

The children of the marriage namely X (born (omitted) 2001) and Y (born (omitted) 2005) (hereinafter “the children”) live with the Mother;
Both parents have equal shared parental responsibility in relation to the children;
The Mother be restrained from relocating the children’s place of residence from the (omitted) area until such time Y completes his primary schooling;
The Mother be restrained from relocating the children’s place of school from (omitted) with the child X to attend (omitted) High School at the conclusion of his primary schooling at (omitted);
The children spend time with the Father as follows:
(a)Each alternate weekend from the conclusion of school Friday to the commencement of school Wednesday;
(b)For one half of each of the end of Term 1, Term 2, Term 3 and Term 4 school holidays, being the second half in even numbered years including Christmas Day from 10am to 2pm and the first half in odd numbered years with the mother to have the children on Christmas Day from 10am until 2pm. Orders 3(i) and 3(ii) shall be suspended to facilitate holiday spend time arrangements;
(c)For not less than 2 hours on the children’s birthday with the same arrangement to apply to the mother should the children be in the father’s care on these occasions;
(d)On Father’s Day from 9am to 4pm with the same arrangement to apply to the mother for Mother’s Day should the children be in the Father’s care on this occasion;
(e)At other times that may be agreed between the parties from time to time;
Any changeovers not scheduled to take place at the children’s school shall take place at a venue as agreed between the parties;
The communication book currently being utilised between the parties continue with communications to be limited to issues that will assist the parties to effectively co-parent the children with the book to continue to be exchanged between the parties each time the children move the from the care of one parent to the…

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 Wicks and Wicks

Details

AGLC: Wicks and Wicks [2013] FCCA 2237
Case: [2013] FCCA 2237
Decision Date: 19 July 2013

CaseChat Overview and Summary

This matter concerned an application by the Mother and Father regarding the parenting arrangements for their two children, X and Y. The dispute centred on the children's residence, parental responsibility, and the extent of time each parent would spend with them, including specific provisions for communication, school, and relocation. The case was heard by Judge Neville.

The court was required to determine the primary residence of the children, whether parental responsibility should be equal and shared, and to make orders concerning the Mother's ability to relocate the children's residence and school. Further issues included the specific arrangements for the children to spend time with the Father, including during school holidays and on special occasions, as well as provisions for communication between parents and children, and between the parents themselves regarding the children's well-being and schooling.

Judge Neville ordered that the children live with the Mother and that both parents have equal shared parental responsibility. Crucially, the Mother was restrained from relocating the children's residence from their current area until the younger child, Y, completed primary schooling, and from relocating X's school to a different high school. The judgment detailed specific time arrangements for the Father, including alternate weekends, half of each school holiday period, and time on birthdays and Father's Day. The orders also established protocols for communication, including a communication book, telephone contact, and prohibitions against denigrating the other parent. Further provisions addressed notification of illness or injury, access to medical information, and the provision of school reports to the Father, along with requirements for advance notice of any change of address or contact details.

Orders

Orders of the court

The children of the marriage namely X (born (omitted) 2001) and Y (born (omitted) 2005) (hereinafter “the children”) live with the Mother;

Both parents have equal shared parental responsibility in relation to the children;

The Mother be restrained from relocating the children’s place of residence from the (omitted) area until such time Y completes his primary schooling;

The Mother be restrained from relocating the children’s place of school from (omitted) with the child X to attend (omitted) High School at the conclusion of his primary schooling at (omitted);

The children spend time with the Father as follows:

(a) Each alternate weekend from the conclusion of school Friday to the commencement of school Wednesday;

(b) For one half of each of the end of Term 1, Term 2, Term 3 and Term 4 school holidays, being the second half in even numbered years including Christmas Day from 10am to 2pm and the first half in odd numbered years with the mother to have the children on Christmas Day from 10am until 2pm. Orders 3(i) and 3(ii) shall be suspended to facilitate holiday spend time arrangements;

(c) For not less than 2 hours on the children’s birthday with the same arrangement to apply to the mother should the children be in the father’s care on these occasions;

(d) On Father’s Day from 9am to 4pm with the same arrangement to apply to the mother for Mother’s Day should the children be in the Father’s care on this occasion;

(e) At other times that may be agreed between the parties from time to time;

Any changeovers not scheduled to take place at the children’s school shall take place at a venue as agreed between the parties;

The communication book currently being utilised between the parties continue with communications to be limited to issues that will assist the parties to effectively co-parent the children with the book to continue to be exchanged between the parties each time the children move the from the care of one parent to the other;

Telephone communication with the father and the children shall take place each and every Wednesday between 7.30pm and 8pm and on not less than one further occasion each week. Telephone communication with the mother shall take place at the same time on the Sunday of any weekend the children are in the father’s care or at any reasonable time that the children, or the parents, wish to have communication;

Neither parent shall denigrate the other parent in the presence or hearing of the children and neither parent shall cause, permit or allow another person to do so;

10.

In the event that the children suffer any illness or injury requiring medical attention or hospitalisation while in the care of either parent then that parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the children are taken;

11.

The parent in whose care the children are make available copies of all medical reports that may be sent to the other parent in connection with any such illness or hospitalisation of the children;

12.

The parent in whose care the children are authorise any hospital in which the children may be admitted and/or medical practitioner under whose care the children may be to make available any such information as the other parent may request;

13.

The mother sign all documents and do all things necessary to authorise the school at which the children may from time to time attend to furnish the father with copies of all school reports, notices and advices concerning the children and any activities the children are involved in.

14.

Each parent advise the other parent, in writing, two weeks in advance of any change of address and/or telephone numbers.

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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