Wilson & Anor and Roberts & Anor (No 2) - [2010] FamCA 734

FAMILY COURT OF AUSTRALIA

WILSON AND ANOR & ROBERTS AND ANOR (NO. 2)

[2010] FamCA 734

FAMILY LAW – CHILDREN – With whom a child spends time – Arrangement between two sets of homosexual partners that the child would be raised by all four adults – Best interests of child

APPLICANTS:

Mr Wilson and Mr Farmer

RESPONDENTS:

Ms Roberts and Ms Boston

FILE NUMBER:

MLC

8071

2009

DATE DELIVERED:

19 August 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

15 February 2010, 11 May 2010, 18-21 May & 24-27 May 2010, 15 June, 17-18 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Ms Stoikovska

SOLICITOR FOR THE APPLICANTS:

Pearsons Barristers & Solicitors

COUNSEL FOR THE RESPONDENTS:

Mr Sweeney

SOLICITOR FOR THE RESPONDENTS:

Harvey Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr O’Connell

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That all previous parenting orders be discharged.

That the child E born … July 2008 shall live with the Respondents Ms Roberts and Ms Boston.

That the Respondents shall have sole parental responsibility for the child.

That each of the Applicants namely Mr Wilson and Mr Farmer spend time with the child as follows:

(a) On Tuesday 24 August 2010 and Thursday 26 August 2010 from 8:00 am until 12:00 pm;

(b) That the time referred to in paragraph 4 (a) herein be supervised by Mr G Roberts or Ms PR.

(c) Thereafter for a period of 12 weeks:

(i.) Each alternate Sunday from 8:00 am until 12 pm commencing 29 August 2010; and

(ii.) Each alternate Thursday from 8:00 am until 12:00 pm commencing 2 September 2010

(d) Thereafter for a period of 12 weeks:

(i) Each alternate Sunday from 10:00 am until 5:00 pm;

(ii) Each alternate Thursday from 8:00 am until 12:00 pm;

(e) Thereafter until the child turn 3 years:

(i) Each third Saturday and Sunday from 10:00 am until 5:00 pm;

(f) Upon the child turning 3 years of age for a period of 8 weeks from 12:00 noon Saturday until 12 noon Sunday every third weekend;

(g) Thereafter from 10:00 am Saturday until 5:00 pm Sunday each third weekend;

(h) Upon the child commencing school each third weekend from 5:00 pm Friday until 5:00 pm Sunday;

(i) On Father’s Day from 10:00 am until 5:00 pm commencing in 2011 and each year thereafter;

(j) In the event that the Applicant’s time falls on Mother’s Day then time shall be suspended on 10:00 am on Mother’s Day;

(k) On Christmas Eve from 10:00 am until 5:00 pm in 2010 and each alternate year thereafter;

(l) On Boxing Day from 10:00 am until 5:00 pm in 2011, 2013 and 2015;

(m) Upon the child commencing school for four nights in the term school holidays by agreement and in default of agreement the time shall commence on the first Saturday of the holidays at 10:00 am and conclude at 5:00 pm on the first Wednesday of the holidays;

(n) Upon…

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

Case: [2010] FamCA 734
Decision Date: 19 August 2010

CaseChat Overview and Summary

This matter concerned a dispute between Mr Wilson and Mr Farmer (the applicants) and Ms Roberts and Ms Boston (the respondents) regarding the parenting arrangements for a child, E, born in July 2008. The applicants sought shared parental responsibility and opposed the respondents' proposed overseas relocation. The respondents sought sole parental responsibility and permission to relocate overseas for career opportunities, arguing that spending time with the applicants would be contrary to E's best interests. The Independent Children's Lawyer (ICL) supported the respondents' application for sole parental responsibility and the relocation, though not before E attained the age of five.

The court was required to determine the best interests of the child, E, in relation to parental responsibility, time spent with each party, and the potential for international relocation. Specifically, the court had to consider whether to grant sole parental responsibility to the respondents, whether to permit the respondents to relocate overseas with E, and what arrangements for time and communication would be appropriate for the applicants to maintain a relationship with E, both before and after any relocation. The court also had to address the applicants' initial, but later withdrawn, request for E to live with them and for Mr Wilson to be included on E's birth certificate.

Dessau J discharged all previous parenting orders and made new orders reflecting a phased approach to time spent between E and the applicants, commencing with supervised time and gradually increasing in duration and frequency. The respondents were granted sole parental responsibility for E and permitted to travel overseas with the child pending relocation in 2012, with specific provisions for make-up time and ongoing communication. The orders also detailed arrangements for time and communication following the relocation, including periods of time in the country of residence, weekly Skype calls, and the applicants' responsibility for travel costs. Provisions were also made for passport applications, medical information sharing, and school reports.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the child E born … July 2008 shall live with the Respondents Ms Roberts and Ms Boston.

That the Respondents shall have sole parental responsibility for the child.

That each of the Applicants namely Mr Wilson and Mr Farmer spend time with the child as follows:

(a) On Tuesday 24 August 2010 and Thursday 26 August 2010 from 8:00 am until 12:00 pm;

(b) That the time referred to in paragraph 4 (a) herein be supervised by Mr G Roberts or Ms PR.

(i.) Each alternate Sunday from 8:00 am until 12 pm commencing 29 August 2010; and

(ii.) Each alternate Thursday from 8:00 am until 12:00 pm commencing 2 September 2010

(d) Thereafter for a period of 12 weeks:

(i) Each alternate Sunday from 10:00 am until 5:00 pm;

(ii) Each alternate Thursday from 8:00 am until 12:00 pm;

(e) Thereafter until the child turn 3 years:

(i) Each third Saturday and Sunday from 10:00 am until 5:00 pm;

(f) Upon the child turning 3 years of age for a period of 8 weeks from 12:00 noon Saturday until 12 noon Sunday every third weekend;

(g) Thereafter from 10:00 am Saturday until 5:00 pm Sunday each third weekend;

(h) Upon the child commencing school each third weekend from 5:00 pm Friday until 5:00 pm Sunday;

(i) On Father’s Day from 10:00 am until 5:00 pm commencing in 2011 and each year thereafter;

(j) In the event that the Applicant’s time falls on Mother’s Day then time shall be suspended on 10:00 am on Mother’s Day;

(k) On Christmas Eve from 10:00 am until 5:00 pm in 2010 and each alternate year thereafter;

(l) On Boxing Day from 10:00 am until 5:00 pm in 2011, 2013 and 2015;

(m) Upon the child commencing school for four nights in the term school holidays by agreement and in default of agreement the time shall commence on the first Saturday of the holidays at 10:00 am and conclude at 5:00 pm on the first Wednesday of the holidays;

(n) Upon the child commencing school for one week of the long summer holidays by agreement and in default of agreement from 10:00 am on 2 January until 5:00 pm 9 January;

(o) Upon the child completing grade 1 for a period of two weeks of the long summer holiday by agreement and in default of agreement:

(i) From 10:00 am 2 January until 5:00 pm 16 January in 2016 and each alternate year thereafter; and

(ii) From 10:00 am on Boxing Day until 5:00 pm 9 January in 2017 and each alternate year thereafter.

(p) On a date near the child’s birthday for a period of three hours by agreement and in default of agreement on 31 July each year for a period of three hours as agreed and in default of agreement from 1:00 pm until 4:00 pm if a non school day and from 3:30 pm until 6:30 pm if a school day;

(q) In the event that the Applicant’s time falls on the child’s birthday such time shall be suspended at 5:00 pm the day before the time and the Applicants shall have make up time from either before or after the time;

(r) Upon the child commencing school the weekend time referred to herein shall be suspended during all school term holidays and the long summer vacation; and

(s) As otherwise may be agreed.

That changeover shall occur at the front entrance to the R Centre in Melbourne or as otherwise may be agreed.

That the Respondents are permitted to travel with the child overseas pending the operation of Order 7 as follows:

(a) From 20 September 2010 until 4 October 2010 inclusive;

(b) For a period of four weeks during February/March 2010;

(c) For a period of four weeks pending the operation of Order 7 herein and such period can be taken consecutive or separately;

(d) The Applicants be provided with make up time with the child with half to be taken prior to the travel and half to be taken after the travel.

(e) The time with arrangements shall resume as if the travel had not occurred save for the requirement of make up time and does not effect the graduation of the time;

(f) During the travel the Respondents are to enable the child to phone/Skype the Applicants on the day they would normally have the child; and

(g) The Respondents are to provide the Applicants with contact details for the child whilst they are away.

That the Respondents be permitted to relocate with the child at the commencement of 2012. The Respondents shall advise the Applicants thirty days prior to any relocation of their intention to relocate and provide contact details including telephone number and address.

That upon the Respondents relocating pursuant to Order 7 herein the Applicants namely Mr Wilson and Mr Farmer spend time and communicate with the child as follows:

(a) For a period of two blocks of two weeks in the country in which the child is residing by agreement and in default of agreement in January and July each year at times advised by the Applicants 30 days prior to the proposed time;

(b) By Skype once per week;

(c) In the event that the Applicants elect to relocate to reside in the same country overseas as the child is residing then they shall have time pursuant to Order 4 herein; and

(d) As otherwise may be agreed between the parties.

That in relation to the time referred to in paragraph 8 (a) herein:

(a) The first four blocks of two weeks time the Applicants spend with the child shall in the first week be day time only and at such times as to accommodate the child’s schooling if relevant and in the second week there be two periods of overnight time.

(b) In 2014 the applicants spend time in the first week in day time and in the second week for four nights.

(d) Thereafter pursuant to paragraph 8 (a).

10.

That the Applicants shall be responsible for the cost of travel associated with paragraph 8 herein.

11.

That the parties keep each other advised of their current contact details including telephone numbers and address within 24 hours of any change.

12.

That the Applicants do all things and sign all documents as may be required from time to time to enable the Respondents to obtain a passport for the child.

13.

That each party shall keep the other informed of any significant medical issues and/or treatment when the child E is in their respective care.

14.

That the Respondents to provide to the Applicants copies of the child’s school reports.

15.

That the applicants keep the respondents informed of all contact details including addresses when taking the child on holiday including the time referred to in paragraph 8 (a) and 9, and including in week-end time.

16.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

17.

That otherwise all existing applicants shall be dismissed and the case removed from the List.

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

That the Respondents are permitted to travel with the child overseas pending the operation of Order 7 as follows: That the Respondents be permitted to relocate with the child at the commencement of 2012. The Respondents shall advise the Applicants thirty days prior to any relocation of their intention to relocate and provide contact details including telephone number and address. That upon the Respondents relocating pursuant to Order 7 herein the Applicants namely Mr Wilson and Mr Farmer spend time and communicate with the child as follows: That in relation to the time referred to in paragraph 8 (a) herein: That the Applicants shall be responsible for the cost of travel associated with paragraph 8 herein. That the parties keep each other advised of their current contact details including telephone numbers and address within 24 hours of any change. That the Applicants do all things and sign all documents as may be required from time to time to enable the Respondents to obtain a passport for the child. That each party shall keep the other informed of any significant medical issues and/or treatment when the child E is in their respective care. That the Respondents to provide to the Applicants copies of the child’s school reports. That the applicants keep the respondents informed of all contact details including addresses when taking the child on holiday including the time referred to in paragraph 8 (a) and 9, and including in week-end time. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. That otherwise all existing applicants shall be dismissed and the case removed from the List. Ms Roberts gave birth to E two years ago. He has at all times lived with her and her partner Ms Boston. E’s biological father Mr Wilson and his partner Mr Farmer want to spend substantial time with him. The women say it would be contrary to the child’s best interests. The ICL’s view is that the child should spend time with the men. The women also seek sole parental responsibility for E, and the right to relocate overseas, primarily for career opportunities for Ms Roberts. The men seek shared parental responsibility with the women, and that E not be relocated overseas. The ICL supports the women’s proposal for parental responsibility to be solely with them. She also supports the child’s relocation, but not before he attains the age of five (in 2013). Until late in the case the men had also sought orders for the child to move to live with them. Their reasons for that, and the withdrawal of their application, shall be discussed below. In addition, they had wanted Mr Wilson to be included on E’s birth certificate, but ultimately that order was not pursued.