Wilcox and Wilcox - [2016] FCCA 2971

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILCOX & WILCOX

[2016] FCCA 2971

Catchwords:
FAMILY LAW – Parenting – spending time arrangements for children – allegations of Family Violence by both parents – mother’s capacity to facilitate a relationship between the children and their father – whether the mother should have sole parental responsibility.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA, 117

Cases cited:

Lennon & Lennon [2011] FamCA 571
Mazorski v Albright [2007] FamCA 520
Ulster & Viney [2016] FamCAFC 119

Applicant:

MR WILCOX

Respondent:

MS WILCOX

File Number:

MLC 1322 of 2015

Judgment of:

Judge Williams

Hearing dates:

5 – 8 September 2016

Date of Last Submission:

29 September 2016

Delivered at:

Melbourne

Delivered on:

17 November 2016

REPRESENTATION

Counsel for the Applicant:

Ms Renwick

Solicitors for the Applicant:

Barry Nilsson Lawyers

The Respondent:

In Person

ORDERS

That all previous parenting Orders be discharged.
The husband and the wife retain equal shared parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2005.
The children live with the wife.
Commencing the Wednesday immediately following the making of these Orders, and for a period of one month, the children spend time with the husband as follows during school terms:
(a)In week one:
(i)from the conclusion of school on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until 5:00pm on Sunday; and
(b)In week two:
(i)From 6:00pm on Wednesday (or the conclusion of any extracurricular activity be undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).
Following the expiration of the month contemplated by paragraph 4 hereof, and for a further period of one month, the children spend time with the husband as follows during school terms:
(a)In week one:
(i)from the conclusion of school on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until commencement of school Monday (or 9.00am if a non-school day);
(b)In week two:
(i)from 6:00pm on Wednesday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).
Following the expiration of the month contemplated by paragraph 5 hereof, the children will spend time with the children as follows during school terms:
(a)In week one:
(i)from 6:00pm on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Monday (or 9:00am if a non-school day); and
(ii)if Monday is a public holiday, then the commencement of school on Tuesday (or 9:00am if a non-school day).
(b)In week two:
(i)from 6:00pm on Wednesday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).
In the event that the husband lives within a…

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 Wilcox and Wilcox

Details

AGLC: Wilcox and Wilcox [2016] FCCA 2971
Case: [2016] FCCA 2971
Decision Date: 17 November 2016

CaseChat Overview and Summary

In the matter of Wilcox and Wilcox, Judge Williams of the Family Court of Australia made orders concerning the parenting arrangements for the parties' two children, X and Y. The dispute centred on the future care and time arrangements for the children following the discharge of previous parenting orders.

The court was required to determine the specific parenting orders that would best serve the interests of the children. This involved establishing a framework for equal shared parental responsibility, determining the children's primary residence, and detailing the time each parent would spend with the children, including during school terms, school holidays, and on special occasions. The court also needed to address practical matters such as communication between parents and children, changeover arrangements, and international travel.

Judge Williams ordered the discharge of all previous parenting orders and established equal shared parental responsibility for the children, with the children to live with the wife. The judgment then set out a detailed schedule for the children's time with the husband, commencing with a transitional period of one month, followed by a further month of increased time, before settling into a regular pattern of weekend and mid-week time. Specific provisions were made for school holidays, including a week-about arrangement for the long summer holidays and a division of other school holidays, with default provisions in the absence of agreement. The orders also detailed arrangements for special occasions such as Christmas, Easter, birthdays, and Father's and Mother's Days, ensuring each parent had dedicated time with the children. Further orders addressed communication, changeover locations, the provision of medication, the exchange of information regarding the children's health and education, and the process for obtaining and renewing passports. The court also mandated attendance at counselling or mediation for any future disputes and ordered joint family therapy.

Orders

Orders of the court

That all previous parenting Orders be discharged.

The husband and the wife retain equal shared parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2005.

The children live with the wife.

Commencing the Wednesday immediately following the making of these Orders, and for a period of one month, the children spend time with the husband as follows during school terms:

(a)In week one:

(i) from the conclusion of school on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until 5:00pm on Sunday; and

(b) In week two:

(i) From 6:00pm on Wednesday (or the conclusion of any extracurricular activity be undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).

Following the expiration of the month contemplated by paragraph 4 hereof, and for a further period of one month, the children spend time with the husband as follows during school terms:

(a)In week one:

(i) from the conclusion of school on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until commencement of school Monday (or 9.00am if a non-school day);

(b) In week two:

(i) from 6:00pm on Wednesday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Thursday (or 9:00am if a non-school day).

Following the expiration of the month contemplated by paragraph 5 hereof, the children will spend time with the children as follows during school terms:

(a)In week one:

(i) from 6:00pm on Friday (or the conclusion of any extracurricular activity being undertaken by the children or either of them) until the commencement of school on Monday (or 9:00am if a non-school day); and

(ii) if Monday is a public holiday, then the commencement of school on Tuesday (or 9:00am if a non-school day).

(b) In week two:

In the event that the husband lives within a 10 kilometre radius of the children’s home then, upon the commencement of time in paragraph 6 hereof, in addition to the time provided in week 1, the children spend time with the husband from 6.00pm on Wednesday or the conclusion of any extra-curricular activity being undertaken by the children or either of them, until the commencement of school or Thursday (or 9.00am if a non-school day).

The children spend time with the husband school holiday periods as follows:

(a) During the term one, term two and term three school holidays as agreed between the parties in writing and, in default of agreement:

(i) for the first half in all even numbered years;

(ii) for the second half in all odd numbered years; and

(iii) the husband’s term time pursuant to paragraphs 4, 5, 6 and 7 hereof be suspended to give effect to this time.

(b) During the long summer school holidays as agreed between the parties in writing and, in default of agreement, pursuant to a week about arrangement with:

(i) the husband's first week to commence in the second week of the long summer school holidays in even numbered years;

(ii) the husband's first week to commence in the first week of the long summer school holidays in even numbered years; and

(iii) the husband's term time pursuant to paragraphs 4, 5, 6 and 7 hereof be suspended to give effect to this time.

For the purposes of paragraph 8 hereof:

(a) The school holiday period is taken to commence at the conclusion of school on the last day of the school term and, if different for the children, the later date.

(b) The school holiday period is taken to conclude at the commencement of school on the first day of the following school term and, if different for the children, the earlier date.

(c) If there are an uneven number of days in the school holiday period, then the parent with whom the children are spending the first half of the holidays will have the extra night.

(d) All non-school holiday Changeover shall occur at 6.00pm unless otherwise agreed in writing by the husband and the wife, in accordance with paragraph 12 hereof.

(e) The term time contemplated by paragraphs 4, 5, 6 and 7 hereof will resume at the conclusion of the school holiday period as if there had been no intermittent school holiday period.

10.

The children spend special occasions with their parents as agreed between the parties in writing and, in default of agreement, in accordance with this provision and all other time is suspended to facilitate the same:

(a) The children spend time with their parents for the Christmas period as follows:

(i) From 5:00pm on Christmas Eve until 1:00pm on Christmas Day in all even numbered years with the wife.

(ii) From 1:00pm on Christmas Day until 5:00pm on Boxing Day in all even numbered years with the husband.

(iii) From 5:00pm on Christmas Eve until 1:00pm on Christmas Day in all odd numbered years with the husband.

(iv) From 1:00pm on Christmas Day until 5:00pm on Boxing Day in all odd numbered years with the wife.

(b) The children spend time with their parents for the Easter period as follows:

(i) From 5:00pm on Good Friday until 1:00pm on Easter Sunday in all even numbered years with the wife.

(ii) From 1:00pm on Easter Sunday until 5:00pm on Easter Monday in all even numbered years with the husband.

(iii) From 5:00pm on Good Friday until 1:00pm on Easter Sunday in all odd numbered years with the husband.

(iv) From 1:00pm on Easter Sunday until 5:00pm on Easter Monday in all odd numbered years with the wife.

(c) In the event that Father’s Day falls on a day on which the children are not spending time with the husband pursuant to these Orders, then the husband spend time with the children from 5.00pm on the eve of Father’s Day until the commencement of school on the following Monday (or 9.00am if a non-school day).

(d) In the event that Mother's Day falls on a day on which the children are not spending time with the wife pursuant to these Orders, then the wife spend time with the children from 5:00pm on the eve of Mother's Day until the commencement of school on the following Monday (or 9:00am if a non-school day).

(e) In the event that any of the children's birthdays or the husband's birthday falls on a day on which the children are not spending time with the husband pursuant to these Orders, then the husband will spend time with the children as agreed between the parties in writing and, failing agreement, as follows:

(i) from the conclusion of school until 7:30pm on a school day; or

(ii) between 3:00pm - 7:30pm on a non-school day.

(f) In the event that any of the children's birthdays or the wife's birthday falls on a day on which the children are not spending time with the wife pursuant to these Orders, then the wife will spend time with the children as agreed between the parties in writing and, failing agreement, as follows:

(i) from the conclusion of school until 7:30pm on a school day; or

(ii) between 3:00pm - 7:30pm on a non-school day.

(g) the parties time contemplated by paragraphs 4, 5, 6, 7 and 8 be suspended to give effect to this time.

11.

Each of the husband and the wife have telephone/Skype or any other communication with the children at all such times which are suitable to the children's routines and the children will be at liberty to communicate with either parent at all such times as the children express a wish to do so and the parent with whom the children are then spending time shall facilitate that communication and afford the children privacy during that communication

12.

For the purposes of these Orders, changeover will occur at a location as agreed between the parties in writing and, in default of agreement , at:

(a)the children's school/s on school days;

(b) the location of the children's extracurricular activities as applicable; or

13.

That the parties do all such acts and things to ensure that both parties will have at their ordinary place of residence, medicine prescribed to Y by her treating medical practitioner for her asthma, including but not limited to a Ventolin spacer.

14.

Each of the parties will at all times:

(a) Keep the other party informed oh his/her contact details within 14 days of any change occurring, including any change to a residential address, landline or mobile telephone number and email address.

(b) Keep the other party informed of the names and addresses of any treating medical or any other allied health practitioner/s, including psychologists and counsellors, who treat the children and authorise such practitioner/s to provide the other party with all information that they are lawfully able to provide to parents about the children.

(c) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner/s to release information concerning the said condition, health issue or illness to the other parent.

(d) Authorise the principal of the school/s attended by the children from time to time to provide to the other party all information ordinarily provided by the school/s to parents of students, at the cost of the party (if any).

(e) Are at liberty to attend at the children's school/s for all events that are routinely attended by parents including, but not limited to, parent teacher interviews, sporting events, school productions and extra curricular activities.

15.

Each of the husband and the wife agree to do all acts and things and sign all documents to apply for Australian passports for the children within one month of the date of these Orders and they will renew those passports as required (but prior to their expiry dates) from time to time, with each of the husband and the wife paying one-half of the cost of obtaining or renewing the children's passports on each occasion.

16.

Each of the husband and the wife agree that the other may temporarily take the children outside of the Commonwealth of Australia and must be provided with the children's passport for the purpose of such travel on such conditions as are agreed between the husband and the wife, and failing agreement, upon the following conditions being met:

(a) the travel is during a school holiday period and during time the children would otherwise spend with the travelling parent pursuant to these Orders;

(b) the children are only to visit (even by way of transit or stopover) countries that are signatories to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction;

(c) the travelling parent provides the non-travelling parent with a draft itinerary, including at least the proposed dates of travel and the countries to which it is proposed the children will be travelling, at least three months prior to the first day of travel;

(d) the travelling parent provides the non-travelling parent with a copy of any airline ticket to be used by the children as well as an itinerary showing all countries that the children will be visiting during the travel at least two months prior to the first day of travel;

(e) The travelling parent provides the non-travelling parent with a copy of a comprehensive travel insurance policy covering the travelling parent and the children, as well as a contact telephone number and address(es) at which the children can be contacted throughout the travel at least fourteen days prior to the first day of travel; and

(f) The travelling parent pays all costs associated with travel.

17.

During any periods of travel, the travelling parent must ensure that the children contact the non-travelling parent by telephone, Skype or other electronic means on at least two occasions per week.

18.

During periods of non-travel, the children's passport will be held by the wife.

19.

In the event that there is a dispute about the children, parenting arrangements or about the interpretation, implementation and/or enforcement of these Orders, then the husband and the wife shall, before making any further application to either the Family Court of Australia or Federal Circuit Court of Australia:

(a) attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth), or by the Commonwealth AttorneyGeneral; or

(b) participate in Family Dispute Resolution with a Family Relationships Centre or a person authorised under s.1OG of the Family Law Act 1975 (Cth).

20.

The husband and the wife, and if applicable, the children to attend upon joint family therapy with such practitioner as recommended by Ms D of (omitted) and for such time as that practitioner considers the same necessary.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.