Withers and Withers - [2017] FCCA 3318

FEDERAL CIRCUIT COURT OF AUSTRALIA

WITHERS & WITHERS

[2017] FCCA 3318

Catchwords:
FAMILY LAW – Parenting – one child aged 9 – interim proceeding – relocation application – primary attachment – no meaningful communications and cooperation between parents – presumption of equal shared parental responsibility rebutted – half sibling resides in relocation region – family violence.

Legislation:

Family Law Act 1975 (Cth), Pt VII

Cases cited:

Browne & Keith [2015] FamCAFC 143

C & S [1998] FamCA 66
Mazorski & Albright [2007] FamCA 520
Morgan & Miles [2007] FamCA 1230

Applicant:

MR WITHERS

Respondent:

MS WITHERS

File Number:

NCC 2721 of 2013

Judgment of:

Judge Middleton

Hearing date:

21 July 2017

Date of Last Submission:

21 July 2017

(omitted)Delivered at:

Newcastle

Delivered on:

1 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr Betts

Solicitors for the Applicant:

Eddelbuttel Law

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Walker Legal Taree

ORDERS

The Mother and the child, X born (omitted) 2008 (“the child”), be permitted to relocate and change their residence from (omitted), NSW, to an address in the greater (omitted) geographical area.
Upon such relocation, the Mother shall notify the Father in writing of the new address of the Mother and child within 24 hours of such relocation occurring.
The child live with the Mother.
The child spend time with the Father as follows:
(a)Each alternate weekend, from 6.00pm Friday to 4.00pm Sunday.
(b)For a 4 night block during all Term 1, 2 and 3 NSW gazetted school holidays:
(i)In 2018 and each even numbered year, from 10.00am on the first Saturday day of each of these holidays, to 4.00pm on the immediately following Wednesday; and
(ii)In 2017 and each odd numbered year, from 10.00am on the middle Saturday of the holidays, to 4.00pm on the immediately following Wednesday of the holidays.
(c)For two separate 4 night blocks in the Term 4 NSW gazetted school holidays:
(i)In 2018 and each even numbered year, from 4.00pm on 25 December until 4.00pm on 29 December; and
(ii)In 2017 and each odd numbered year, from 10.00am on the second Sunday in January to 4.00pm on the immediately following Thursday; and;
(iii)With the second block to occur by agreement, with the Father to submit his requested days to the Mother at least 14 days prior to the commencement of the second block, such time not to coincide with the existing holiday time, or the Mother’s birthday and is not to be unreasonably refused.
(d)For the special days of Christmas as agreed, but failing agreement:
(i)In 2017 and each odd numbered year, from 4.00pm Christmas Day to 4.00pm Boxing Day; and
(ii)In 2018 and each even numbered year, from 4.00pm Christmas Eve to 4.00pm Christmas Day.
(e)For Father’s day weekend, regardless of whether the time falls on the Father’s weekend time in Order 4(a), from 6.00pm Friday to 4.00pm Sunday;
(f)On the child’s birthday, for 2 hours as agreed, but failing agreement, from 4.00pm to 6.00pm, such time to take place in 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 Withers and Withers

Details

AGLC: Withers and Withers [2017] FCCA 3318
Case: [2017] FCCA 3318
Decision Date: 1 December 2017

CaseChat Overview and Summary

The case of Withers and Withers involved an application by the Mother concerning her child, X, born in 2008. The primary dispute centred on the Mother's request to relocate with the child from New South Wales to an address within the greater (omitted) geographical area. The matter was heard by Judge Middleton.

The court was required to determine the specific parenting arrangements for the child, X, following the proposed relocation. This included establishing the primary residence of the child, the schedule for the child spending time with the Father, and provisions for communication and information sharing between the parents. The court also needed to consider the practicalities of facilitating the Father's time with the child and address any restrictions on that time.

Judge Middleton ordered that the Mother and child be permitted to relocate. The orders detailed a comprehensive schedule for the child's time with the Father, including alternate weekends, specific blocks during school holidays, and arrangements for special days such as Christmas and the child's birthday. The Mother was also ordered to notify the Father of the new address within 24 hours of the relocation. Further orders stipulated how the Father's time would be facilitated, including specific drop-off and pick-up arrangements, and outlined periods when the Father's time would be suspended, such as on Mother's Day weekend. The court also mandated regular telephone communication between the Father and the child, and established protocols for parents to keep each other informed of the child's welfare, medical issues, and school activities. Both parents were ordered to refrain from making derogatory remarks about the other in the child's presence and were granted authority to receive relevant information from the child's educational and healthcare providers. The matter was subsequently transferred to the Newcastle Federal Circuit Court for a directions hearing.

Orders

Orders of the court

The Mother and the child, X born (omitted) 2008 (“the child”), be permitted to relocate and change their residence from (omitted), NSW, to an address in the greater (omitted) geographical area.

Upon such relocation, the Mother shall notify the Father in writing of the new address of the Mother and child within 24 hours of such relocation occurring.

The child live with the Mother.

The child spend time with the Father as follows:

(a) Each alternate weekend, from 6.00pm Friday to 4.00pm Sunday.

(b) For a 4 night block during all Term 1, 2 and 3 NSW gazetted school holidays:

(i) In 2018 and each even numbered year, from 10.00am on the first Saturday day of each of these holidays, to 4.00pm on the immediately following Wednesday; and

(ii) In 2017 and each odd numbered year, from 10.00am on the middle Saturday of the holidays, to 4.00pm on the immediately following Wednesday of the holidays.

(i) In 2018 and each even numbered year, from 4.00pm on 25 December until 4.00pm on 29 December; and

(ii) In 2017 and each odd numbered year, from 10.00am on the second Sunday in January to 4.00pm on the immediately following Thursday; and;

(iii) With the second block to occur by agreement, with the Father to submit his requested days to the Mother at least 14 days prior to the commencement of the second block, such time not to coincide with the existing holiday time, or the Mother’s birthday and is not to be unreasonably refused.

(d) For the special days of Christmas as agreed, but failing agreement:

(i) In 2017 and each odd numbered year, from 4.00pm Christmas Day to 4.00pm Boxing Day; and

(ii) In 2018 and each even numbered year, from 4.00pm Christmas Eve to 4.00pm Christmas Day.

(e) For Father’s day weekend, regardless of whether the time falls on the Father’s weekend time in Order 4(a), from 6.00pm Friday to 4.00pm Sunday;

(f) On the child’s birthday, for 2 hours as agreed, but failing agreement, from 4.00pm to 6.00pm, such time to take place in the (omitted) area, save and except for the occasions where the child’s birthday falls on the Father’s weekend pursuant to Order 4(a), or the holiday time in Order 4(b).

The Father’s time in Order 4 be facilitated by the Mother delivering the child to the Father at “(omitted)” service station on the (omitted) at (omitted) at the commencement of the time, and the Father returning the child to the Mother at “(omitted)” at the conclusion of the time.

The Father’s time pursuant to Order 4 be suspended as follows:

(a) In the Term 1, 2 and 3 NSW gazetted school holidays, at all times not set out in Order 4(b);

(b) For the Term 4 NSW gazetted school holidays, at all times not set out in Order 4(c); and

The Father have telephone communication each Wednesday and Sunday evening between 7.00pm and 7.30pm, where the child is not spending time with him, and that the Father place the call to the Mother’s mobile phone.

The parents shall ensure they keep each other informed of:

(a) Any medical problems or illnesses suffered by the child while in their care;

(b) Any medication that has been prescribed for the child;

(d) Any other matter relevant to the child’s welfare.

For the purposes of communicating information between the parties the Mother and the Father shall communicate by text for matters of an urgent nature an otherwise;

10.

Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that the child does not remain in the presence of any third party making critical comments about the other party.

11.

Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within 48 hours of such change occurring.

12.

Both parents be entitled to attend all events involving the child including

(a) Sporting fixtures;

(b) Extra-curricular activities that allow for parental attendance;

(c) School function and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions

and the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from that event.

13.

These Orders are sufficient authority for both parties to receive all relevant information relating to the child from all schools, medical practitioners and other health care providers, all sporting clubs and all extra circular activities attended to by the child.

14.

The matter is transferred to the Newcastle Federal Circuit Court.

15.

The matter is adjourned to 9.30am on 5 April 2018 at Newcastle for directions hearing.

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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