FAMILY COURT OF AUSTRALIA
| WITHERS & RUSSELL AND ANOR | [2016] FamCA 793 |
| FAMILY LAW – CHILDREN – Where the wife seeks that the children be permitted to live with her in the United States – Where the husband seeks that the children reside with him in Australia – Where the wife makes serious allegations of family violence and child abuse – Where the allegations of family violence and child abuse are largely made without substantial foundation – Where the risk posed by the wife to the children’s relationship with the husband is far greater than the risk posed by the husband to the children’s relationship with the wife – Where the husband is to have parental responsibility subject to conditions – Where it is in the best interests of the children to reside in Australia with the husband and spend time with the wife and the maternal grandparents – Where there is a delay in when the children will be permitted to spend time with the wife in the USA. FAMILY LAW – CHILDREN – PASSPORTS – Consideration of the provisions of s 11 of the Australian Passports Act 2005 (Cth) (“APA”) – Whether an order for sole parental responsibility is sufficient to give exclusive responsibility in the hands of the husband to apply for passports or travel related documents for the children – Where it is not – Consideration of power under APA exercised – Consideration of form of orders to be made. FAMILY LAW – PRACTICE AND PROCEDURE – Application to remove the ICL – Where the application is dismissed. FAMILY LAW – PROPERTY – Where the wife makes an application for the matrimonial law of California to apply when making the property settlement order – Where the application is dismissed. FAMILY LAW – PROPERTY – Where the parties’ net assets are almost entirely represented by the value of the husband’s superannuation interest –Where properties held by the wife’s trust are cross collateralised against other property and debt held by the parties – Where the wife made a significant initial contribution – Where the parties’ contributions during the marriage are equal – Where the wife received the net proceeds of the sale of two properties since separation – Where the wife has made greater contributions in the role of parent since separation – Where there should be a 5 per cent adjustment in favour of the wife based on contributions – Where the husband will have primary responsibility for the children – Where there is a 5 per cent adjustment in favour of the husband based on s 79(4)(d)-(g) factors – Where the assets and liabilities of the parties should be divided evenly – Where all properties need to be available to cover or repatriate debt but the parties are given a two month period in which to refinance or retain the properties – Where orders are made by consent dismissing the husband’s application against the 2nd respondent. FAMILY LAW – PRACTICE AND PROCEDURE… |
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- AGLC
- Withers & Russell [2016] FamCA 793
- Case
- [2016] FamCA 793
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children in relation to their residence and parental responsibility. This included assessing the risks posed by each parent to the children's relationship with the other parent, and considering the impact of any proposed relocation. Additionally, the court had to consider the provisions of the *Australian Passports Act 2005* (Cth) regarding the ability to apply for passports and travel documents for the children, and whether an order for sole parental responsibility was sufficient for this purpose. The court also addressed applications to remove an Independent Children's Lawyer and to reopen the parenting hearing, both of which were dismissed.
Watts J found that the risk posed by the wife to the children's relationship with the husband was significantly greater than any risk posed by the husband to the children's relationship with the wife. Consequently, the court determined that it was in the best interests of the children to reside in Australia with the husband, with provisions for them to spend time with the wife and maternal grandparents. The court also found that an order for sole parental responsibility was not sufficient to grant exclusive responsibility for passport applications and exercised its power under the *Australian Passports Act 2005* (Cth) to make specific orders regarding this. In relation to property, the court found that while the wife had made a significant initial contribution and equal contributions during the marriage, and greater contributions as a parent since separation, there should be a 5% adjustment in her favour for contributions. However, a further 5% adjustment was made in favour of the husband based on other factors under s 79(4)(d)-(g) of the *Family Law Act 1975* (Cth), resulting in an even division of assets and liabilities.
The court ordered that the husband have sole parental responsibility for the children, subject to specific conditions requiring consultation with the wife on major long-term issues. The children were to live with the husband from 22 September 2016, with detailed provisions for the children to spend time with the wife in Australia. The court also made specific orders regarding the children's medical treatment, surname, schooling, and immunisation, and restricted the children's travel outside Australia with their mother until December 2017. Specific orders were also made regarding the application for passports and travel documents for the children.
Orders
Orders of the court
1.
The 2nd respondent’s Application in a Case filed 31 August 2016 be dismissed.
Parenting
2.
All previous parenting orders are discharged.
3.
The husband have sole parental responsibility for the children A born … 2009 and B born … 2011 (collectively “the children”).
4.
To avoid any doubt, and subject to order 10, a decision in respect of the immunisation of the children and whether the children may consume gluten are decisions about a major long term issues to which the preceding order applies.
5.
The husband shall have parental responsibility subject to the following conditions:
5.1. Except in the case of an emergency, the husband shall give the wife at least 14 days written notice of his intention to make any decision about a major long term issue in relation to either of the children, setting out what he intends to do and the reasons he intends to make the decision;
5.2. The husband shall not implement the expressed intention until the expiration of a period of 14 days;
5.3. Within that 14 day period, if the wife disagrees with the husband’s intention, the wife may give the husband her views about the husband’s intended decision in writing;
5.4. For a further period of 14 days the parties are to consult in writing about any such decision about a major long term issue as proposed by the husband with which the wife disagrees and make a genuine effort to come to a joint decision about that issue;
5.5. In the event the husband and wife are unable to reach a joint decision after the expiration of that consultative period of a further 14 days, the husband is to make the decision in respect of that major long term issue.
6.
Should there be any medical emergency involving the children, including but not limited to serious illness, accident or hospitalisation, the parent with the care of the children at that time must:
6.1. Immediately contact the other parent;
6.2. As soon as practicable, provide to the other parent all documentation and information in their control or possession regarding the medical emergency;
6.3. Notify the other parent of the name of any medical practitioner, paediatrician or other specialist who treats the child whilst the child is in that parent’s care.
7.
The wife and the maternal grandparents are able to take a child or the children for medical attention in the case of an emergency but are otherwise restrained from arranging medical treatment for the children without the written consent of the husband and in particular, restrained from taking a child to a chiropractor or osteopath at any time for any reason without the prior written consent of the husband.
8.
The wife is restrained from permitting the use of any surname of the children other than “Withers” when the children are in her care.
9.
The husband is to forthwith authorise any preschool or school the children may attend to provide to the wife copies of reports, newsletters and announcements of centre/school activities or otherwise pertaining to the education of the children, and the husband shall authorise staff members at any preschool or school the children may attend, to discuss the children’s progress with the wife.
10.
The court notes that the parents disagree about the immunisation of the children and the ability of each of the children to tolerate gluten:
10.1. The husband is not to make any decision in relation to the immunisation of the children until he has obtained an advice from an appropriate medical specialist and provided a copy of that advice to the wife;
10.2. The husband is to keep the children on a gluten free diet until he obtains the advice from an appropriate medical specialist that the children can tolerate eating gluten. The specialist is to be told that the mother of the children is (at least) gluten intolerant. A copy of that written advice is to be provided to the wife.
Otherwise the provisions of order 5 apply.
11.
Without the need to comply with order 5 the husband may, at the conclusion of the current school term, change A’s schooling from F School to L Primary School.
12.
Subject to these orders, the children live with the husband from Thursday 22 September 2016.
13.
If the wife is in Australia, the children are to spend time with their parents in Australia as follows:
13.1. With the wife on each alternate weekend from after school and preschool on a Friday (or 3 pm if Friday is a non-school day) to before school and preschool on Monday (or 9 am if Monday is a non-school day) with the wife to pick the children up from school and preschool (or if a non-school day, absent any other agreement, the husband’s residential address) and deliver them back to school and preschool (or if a non-school day, absent any other agreement, the husband’s residential address);
13.2. With the wife on each alternate Tuesday night in the off week from after school and preschool on Tuesday (or 3 pm if Tuesday is a non-school day) until before school and preschool on a Wednesday (or 9 am if Wednesday is a non-school day) with the wife to pick the children up and drop them off from and to school and preschool (or if a non-school day, absent any other agreement, the husband’s residential address).
13.3. With the husband for the whole of the term 3 2016 school holidays;
13.4. From term 4 2016 school holidays and each other term 4 school holidays, with the husband for the first half of all school holiday periods commencing in years ending in an even number and the second half of all school holiday periods commencing in years ending in an odd number;
13.5. From term 4 2016 school holidays and each other term 4 school holidays, with the wife for the first half of all school holiday periods commencing in years ending in an odd number and the second half of all school holiday periods commencing in an even number;
13.6. From term 1 2017 and upon the wife giving the husband 4 weeks notice in writing, for two one week periods during any school term, which weeks are not consecutive school weeks (but not to include the last week of term 4 or week one of term 1);
13.7. From term 1 2017 school holidays with the wife for the whole of term 1, 2 and 3 school holidays provided the wife gives to the husband 2 months notice of her intention to have the children with her during any particular school holiday period;
13.8. With the wife from 9 am until 5 pm each Mother’s Day and with the husband from 9 am until 5 pm each Father’s Day;
13.9. On the children’s birthdays each year with the parent with whom the child is living to make the children available to spend time with the other parent for a period of at least three hours at a time to be agreed between the parents but failing such agreement from 4 pm to 7 pm;
13.10. On each of the parent’s birthdays if the children are not with the parent who is having the birthday then the other parent will make the children available to spend time with that parent for at least three hours at a time to be agreed upon between the parents but failing such agreement from 4 pm to 7 pm.
13.11. On Christmas Eve, Christmas and Boxing Day the following orders apply to the time the children spend with the parents:
13.11.1. In even numbered years from 10 am on Christmas Eve to 10 am on Christmas Day with the wife and from 10 am Christmas Day to 10 am on Boxing Day with the husband;
13.11.2. In odd numbered years from 10 am on Christmas Eve to 10 am on Christmas Day with the husband and from 10 am Christmas Day to 10 am on Boxing Day with the wife;
13.11.3. Such further and other times as the parties might agree.
14.
For the purpose of the preceding order, the husband is entitled to request and the wife shall then provide, evidence that she will be or is in Australia.
15.
For the purposes of the preceding orders, in the absence of any written agreement between the parties to the contrary, the following orders apply:
15.1. The first half of school holidays will commence at the end of classes on the last day of school;
15.2. The second half of the December/January school holidays will commence at 5 pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year;
15.3. The second half of all other school holidays will commence at 5 pm on the middle Saturday of the school holidays or the middle Wednesday of the school holidays if the relevant holiday period has an odd number of weeks;
15.4. One half of the school holiday period be calculated by dividing the total number of days the children do not attend school by two. If the number of days are not even the husband is to have the extra day in even numbered years and the wife is to have the extra day in odd numbered years.
16.
For the purposes of the preceding orders, if handover does not occur before or after school or preschool at the children’s school, it is to occur at a location agreed by the parties in writing and failing agreement, at the husband’s residential address.
17.
The children shall not travel with or to be with their mother outside Australia until December 2017.
18.
For the purposes of s 11 Australian Passports Act 2005 (Cth):
18.1.
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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