Wright and Watson - [2016] FCCA 127

FEDERAL CIRCUIT COURT OF AUSTRALIA

WRIGHT & WATSON

[2016] FCCA 127

Catchwords:
FAMILY LAW – Parenting – where relocation sought by the mother with children – where one of three children has special needs – where any move is opposed by the father – where there is evidence of different needs and expectations of the children – where there is a real difference between each parent’s capacity to meet the needs of the children – where the father has not proposed his greater involvement with the children than currently occurs – where the mother seeks the support for the care of the children from family based in Brisbane – where the Family Report raises concerns as to the effects of any relocation as sought by the mother upon the oldest child – where a balance is necessary to meet the best interests of all three children – where the mother’s ongoing capacity to be the primary carer is significant and is detrimentally affected in the event of the mother remaining in the current locality.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60DA, 61C, 61D, 65DAC, 65DAE

U & U (2002) HCA 96
Heath & Hemming (No 2) [2011] FamCA 749
Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439
Marvel & Marvel (2010) 43 Fam LR 348
Goode & Goode (2006) FLC 93-286
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
M & S (2007) FLC 93-313
Godfrey & Sanders [2007] FamCA 102
Champness & Hanson (2009) FLC 93-407
Hepburn v Noble (2010) FLC 93-438
MRR v GR (2010) 240 CLR 461

Applicant:

MS WRIGHT

Respondent:

MR WATSON

File Number:

TVC 222 of 2014

Judgment of:

Judge Coker

Hearing dates:

28 & 29 October 2015

Date of Last Submission:

29 October 2015

Delivered at:

Townsville

Delivered on:

11 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr M Fellows

Solicitors for the Applicant:

SR Wallace & Wallace

Counsel for the Respondent:

Dr M Sayers

Solicitors for the Respondent:

J Hamilton & Associates

ORDERS

That the Mother and the Father have equal shared parental responsibility, in consultation with each other, for making decisions regarding the long term care, welfare and development of the children, X born (omitted) 2003, Y born (omitted) 2007 and Z born (omitted) 2008.
That without limiting the parental responsibility of either parent pursuant to paragraph 1 of these orders, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issues affecting the children for the purpose of these orders, a parenting issue is:-
(a)any medical or health matter concerning the children;
(b)any medical or health matter affecting either parent which may affect the ability of that parent to care for the children;
(c)matters relating to the education of the children,…

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 Watson

Details

AGLC: Wright and Watson [2016] FCCA 127
Case: [2016] FCCA 127
Decision Date: 11 March 2016

CaseChat Overview and Summary

This matter concerned the parenting arrangements for three children, X, Y, and Z, born in 2003, 2007, and 2008 respectively. The decision was made by Judge Coker.

The court was required to determine the extent of equal shared parental responsibility for the children's long-term care, welfare, and development, and to establish specific arrangements for the children's day-to-day care, communication between parents, and time spent with each parent. This included defining significant parenting issues requiring consultation, outlining communication protocols between the parents, and detailing the practical arrangements for the children's living arrangements, travel, and contact with both parents, particularly in light of a proposed relocation of the mother and children to Brisbane.

The court ordered that the Mother and Father have equal shared parental responsibility for the children's long-term care, welfare, and development, requiring them to consult each other on significant parenting issues. These issues were defined to include medical matters, education, disciplinary matters beyond the trivial, social development and sporting activities, and any proposed change to the children's surname. The orders also stipulated that each parent would have sole responsibility for the children's day-to-day care during their respective periods of care. The court further made detailed provisions regarding communication between the parents, including the use of email or text for dispute resolution and the involvement of a dispute resolution practitioner if agreement could not be reached. Specific arrangements were set out for the children's living arrangements, with the children to live with the mother and be permitted to relocate to Brisbane. Detailed schedules were established for the children's time with the Father during school terms and school holidays, including provisions for special occasions and travel arrangements. The orders also included provisions for communication between the non-resident parent and the children, and prohibited denigration of either parent in the presence of the children.

Orders

Orders of the court

That the Mother and the Father have equal shared parental responsibility, in consultation with each other, for making decisions regarding the long term care, welfare and development of the children, X born (omitted) 2003, Y born (omitted) 2007 and Z born (omitted) 2008.

That without limiting the parental responsibility of either parent pursuant to paragraph 1 of these orders, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issues affecting the children for the purpose of these orders, a parenting issue is:-

(a) any medical or health matter concerning the children;

(b) any medical or health matter affecting either parent which may affect the ability of that parent to care for the children;

(c) matters relating to the education of the children, including, but not limited to, the choice of school and curriculum and school other than with respect to routine or administrative matters;

(d) disciplinary matters other than of a trivial nature;

(e) matters concerning the social development and sporting activities of the children including the provision of whatever authority necessary to enable the parent to speak to any relevant persons;

(f) any intended change in the surname by which the children are commonly known from that which appears on the children’s birth certificate.-

Each parent will keep the other informed of:-

(a) their residential and postal address, mobile telephone number and landline numbers, (if available), and shall notify the other 48 hours prior to any change;

(b) the names and addresses of treating medical or other health practitioners who treat the children;

(c) as soon as reasonably practicable of any serious medical condition or significant health issue or significant injury suffered by the children.

That in relation to parental responsibility, if there are any decisions that they need to make, the parties will communicate with each other by email or text message and in the event that they are unable to resolve the dispute regarding parental responsibility they will communicate with a qualified Dispute Resolution Practitioner to try and assist them to resolve the dispute.

That each parent shall have the sole responsibility for the children’s day-to-day care, welfare and development during such times as the children are in the respective parent’s care.

That the parents authorise and direct by this Order:-

(a) medical or other health practitioners to provide both parents with information that they are lawfully able to provide about the children at the requesting parent’s expense;

(b) schools attended by the children to provide all information to both parents about the children’s education progress or other school related activities and either parent may seek school photographs, reports and Certificates at the requesting parent’s expense;

(c) that both parents may attend the children’s school, organised recreational and sporting events involving the children.

That the Mother and the Father shall:-

(a) not discuss these proceedings and ensure their best endeavours to not permit other persons to discuss these proceedings or the allegations made by either parent against the other to or in the presence of the children;

(b) not denigrate and use their best endeavours to not have other persons denigrate the other parent and the other person’s family to or in the presence of the children;

(d) speak respectfully of the other parent and use their best endeavours to encourage others to speak respectfully of the other parent.

That each parent will ensure that the children are returned to the other parent with all of the clothing and other possessions brought with them at the commencement of each period of time the children spend with the other parent.

That the children, X born (omitted) 2003, Y born (omitted) 2007 and Z born (omitted) 2008, live with the mother and the mother be permitted to relocate the children to Brisbane prior to the commencement of the next school term.

10.

That the children shall communicate and spend time with the Father, at all such times as is agreed between the parties and in particular at the following times and upon the following terms during the school term as follows:

(a) In the (omitted) area on the fifth weekend of the school term from the first available flight that leaves Brisbane airport after 5:00pm on Friday until the last available flight before 5:00pm that leaves (omitted) on Sunday;

(b) In Brisbane on up to three weekends per school term provided the father gives no less than 14 days’ notice to the mother of his intention to spend such time in Brisbane, from the conclusion of school on Friday until 6:30pm Sunday;

(i) immediately before the weekend from the conclusion of school on the day prior to the public holiday or student free day; or

(ii) after the weekend, until the commencement of school on the day after the public holiday or student free day

(d) that the time that the children spend with the parents in Order 10 is suspended during school holiday periods;

(e) changeover shall occur where possible at school provided that if the Father is not able to collect the children from school the mother shall deliver the children to the Father and collect the children from the Father at any location within fifteen kilometres of Brisbane GPO.

11.

That with respect to school holidays the children shall spend time with each of the parents as follows unless otherwise agreed:-

(a) With the Father:-

(i) In the Easter, June-July and September-October school holidays where:-

(A) The Father has an entire seven rostered days off with the children, for that entire period of time;

(B) The Father does not have an entire seven rostered days off but takes a week off then for up to 10 days, with the Father to notify the Mother of the start and end dates for the time to be spent with him no less than two weeks prior to the commencement of the school holidays;

(ii) In the Christmas school holidays for up to:-

(A) Three weeks with X during the first half of the holidays in even numbered years and the second half in odd years unless otherwise agreed in writing;

(B) 10 days with Y and Z to coincide with the time that the Father is spending with X, with the Father to notify the Mother of the start and end dates for the time to be spent with him no less than two weeks prior to the commencement of the school holidays;

(b) With the Mother at all other times.

(i) Where the parties are travelling by car:-

(A) At the McDonalds (omitted) with each parent to bear their own costs associated with travelling to the changeover point;

(B) No earlier than midday on the Sunday after the children have finished school or otherwise at midday on the first of the Father’s rostered days off;

(C) No later than midday on the Saturday prior to the children recommencing school or otherwise at midday on the last day of the Father’s rostered days off;

(ii) Where either parent wants the children to fly and is willing to pay for all of the costs associated with travel at the commencement or conclusion of the holidays, changeover can occur at Brisbane airport on the first available flight that leaves Brisbane airport after 5:00pm on the day at the conclusion of school until the last available flight before midday that leaves (omitted) on the day prior to the children returning to school.

12.

That with respect to special occasions, the children shall spend time with each of the parents in the event the Father is in Brisbane as follows unless otherwise agreed:

(a) The children’s birthday the parents spend time with the children on their birthdays in the event that the parent would not be otherwise due to spend time with the children:-

(i) on a school day from the conclusion of school until 7:00pm;

(ii) on a non-school day from 9:00am until 2:00pm;

(b) That for each of the parent’s birthday, on days when that parent would otherwise not be due to be spending time with the children:

(i) on a school day from the conclusion of school until 8:00pm; and

(ii) on a non-school day from 9:00am to 5:30pm.

(c) That for the Father on Father’s Day and the mother on Mother’s Day, that parent who is having the special day shall spend time with the children from 9:00am to 5:30pm;

(d) That for Christmas:-

(i) With the Father in the first year after these orders are made and then every alternate year for up to 10 days inclusive of Christmas Day with the Father to nominate when the time is to start and conclude:

(ii) With the Mother in the second year after these orders are made and then every alternate year for up to 10 days inclusive of Christmas Day with the Mother to nominate when the time is to start and conclude.

13.

That in order to secure the Mother’s obligations to assist with the costs of the children spending time with the Father in (omitted) as provided for in these orders $1,000 will be deposited by the Father on the anniversary of the date of these Orders in each year into a joint account in the name of the parties to be utilised by the Mother along with her own monies as follows:

(a) To book a travel fare for one unaccompanied minor flight at the conclusion of X’s time with his Father once during each school term and once during the Christmas school holidays;

(b) To release up to $300.00 to the Mother during each school holiday period with the Father to assist the Mother in covering the costs of fuel, food and accommodation associated with transporting the children from Brisbane to (omitted).

14.

That the parent who is not with the children shall be at liberty to telephone the children on the following basis between 6.30pm and 7.00pm:-

(a) on Sunday, Tuesday, and Thursday evenings;

(b) on all special occasions when the children would otherwise not be spending time with the parent;

(c) calls shall generally be made to the parent’s landline, but if the children are not available to take the call at any time during this time period the parent will advise the other parent by text message and either provide another phone number or have the children call the other parent.

15.

Both parents will ensure that the children are available and able to speak with the other in accordance with Orders 14 and will respect the privacy of the children and ensure that the call is not monitored and is not placed on speaker phone.

16.

The children can call the other parent at all reasonable times.

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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