Wright and Samuel (No.2) - [2014] FCCA 1519

FEDERAL CIRCUIT COURT OF AUSTRALIA

WRIGHT & SAMUEL (No.2)

[2014] FCCA 1519

Catchwords:
FAMILY LAW – Children – mother’s second application to have child live with her in Victoria – earlier hearing in 2009 – child’s views – whether one consideration can be determinative.

Legislation:

Family Law Act 1975, ss.60CA, 60CC
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Sch.1

KB & TC (2005) FLC 93-224
Carpenter and Lunn (2008) FLC 93-382
Chappell and Chappell (2008) FLC 93-377
Godfrey & Sanders [2007] FamCA 102
Hall & Hall (1979) 5 Fam LR 609; FLC 90-713
Mills & Watson [2008] FMCAfam 2
Samuel & Wright [2009] FMCAfam 1170
Sproat & Brimm [2013] FCCA 1823
Taylor & Barker (2007) FLC 93-345

Applicant:

MS WRIGHT

Respondent:

MR SAMUEL

File Number:

DGC 1698 of 2012

Judgment of:

Judge Roberts

Hearing dates:

5 & 6 February 2014

Date of Last Submission:

6 February 2014

Delivered at:

Launceston

Delivered on:

23 July 2014

REPRESENTATION

Counsel for the Applicant:

Ms E Swart

Solicitors for the Applicant:

Robin Harrison & Associates

Counsel for the Respondent:

Mr G Tucker

Solicitors for the Respondent:

Grant Tucker

Counsel for the Independent Child’s Lawyer:

Mr P Welch

Solicitors for the Independent Child’s Lawyer:

Philip Welch

ORDERS

That save for Order No. 3 thereof, the Orders of this Court of 20 November 2009 (“the 2009 Orders”) remain in full force and effect.
That Order No. 3 of the 2009 Orders is discharged.
That [X] born [omitted] 2003 (“the child”) is to spend time and communicate with MS WRIGHT (“the mother”) as follows:
(a)In Victoria for four weeks during the child’s long summer school holidays, commencing on 28 December in odd numbered years and commencing on 22 December in even numbered years;
(b)In Victoria for one week during the child’s school holiday at the end of Term 1 each year (“the mother’s week”), provided that if that school holiday includes the Easter weekend (Good Friday to Easter Monday), the Easter weekend shall be included in the mother’s week in even numbered years;
(c)In Victoria during the Tasmanian Easter school break in even numbered years when that Easter school break does not coincide with the child’s school holiday at the end of Term 1;
(d)In Victoria for two weeks during the child’s school holiday at the end of Term 2 each year;
(e)In Victoria for one week during the child’s school holiday at the end of Term 3 each year;
(f)At such other times as may be agreed between MR SAMUEL (“the father”) and the mother from time to time;
(g)In Tasmania at other reasonable times upon the mother giving the father reasonable notice of her intention to be in Tasmania;
(h)By telephone or internet at any reasonable times.
That the mother’s Application filed 7 June 2012 and the father’s Response filed 13 July 2012 are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Wright & Samuel (No.2) is approved pursuant to s.121(9)(g) of the Family Law…

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 Wright and Samuel (No.2)

Details

AGLC: Wright and Samuel (No.2) [2014] FCCA 1519
Case: [2014] FCCA 1519
Decision Date: 23 July 2014

CaseChat Overview and Summary

In *Wright and Samuel (No.2)*, Judge Roberts of the Family Court of Australia considered an application by the mother, MS WRIGHT, to vary existing court orders concerning the time the child, born in 2003, would spend with her. The father, MR SAMUEL, had filed a response to this application. The dispute centred on the specific arrangements for the child's time with the mother, as detailed in previous orders made on 20 November 2009.

The primary legal issue before the court was whether to vary the existing orders regarding the child's time with the mother. Specifically, the court had to determine the appropriate schedule for the child to spend time and communicate with the mother, considering the terms of the 2009 Orders and the subsequent applications by the parties.

Judge Roberts reasoned that the existing orders of 20 November 2009 should largely remain in force, save for one specific provision. The court discharged Order No. 3 of the 2009 Orders and, in its place, made new orders detailing the specific periods the child was to spend with the mother. These new orders established a detailed schedule for the child to spend time with the mother in Victoria during various school holidays, including summer, Term 1, Term 2, and Term 3 breaks, with specific provisions for Easter weekends and even-numbered years. The orders also allowed for additional agreed times, time in Tasmania upon reasonable notice, and communication by telephone or internet. The mother's application and the father's response were otherwise dismissed.

Orders

Orders of the court

That save for Order No. 3 thereof, the Orders of this Court of 20 November 2009 (“the 2009 Orders”) remain in full force and effect.

That Order No. 3 of the 2009 Orders is discharged.

That [X] born [omitted] 2003 (“the child”) is to spend time and communicate with MS WRIGHT (“the mother”) as follows:

(a) In Victoria for four weeks during the child’s long summer school holidays, commencing on 28 December in odd numbered years and commencing on 22 December in even numbered years;

(b) In Victoria for one week during the child’s school holiday at the end of Term 1 each year (“the mother’s week”), provided that if that school holiday includes the Easter weekend (Good Friday to Easter Monday), the Easter weekend shall be included in the mother’s week in even numbered years;

(c) In Victoria during the Tasmanian Easter school break in even numbered years when that Easter school break does not coincide with the child’s school holiday at the end of Term 1;

(d) In Victoria for two weeks during the child’s school holiday at the end of Term 2 each year;

(e) In Victoria for one week during the child’s school holiday at the end of Term 3 each year;

(f) At such other times as may be agreed between MR SAMUEL (“the father”) and the mother from time to time;

(g) In Tasmania at other reasonable times upon the mother giving the father reasonable notice of her intention to be in Tasmania;

(h) By telephone or internet at any reasonable times.

That the mother’s Application filed 7 June 2012 and the father’s Response filed 13 July 2012 are otherwise dismissed.

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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