ABRAHAMS & RATHBONE - [2013] FMCAfam 1

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABRAHAMS & RATHBONE

[2013] FMCAfam 1

FAMILY LAW – Children – relocation – competent and committed parents – father’s ability to communicate by telephone and/or Skype.

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA

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
M & S (2007) FLC 93-313
Mazorski and Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Mills & Watson [2008] FMCAfam 2
Moose & Moose (2008) FLC 93-375
Morgan & Miles (2007) FLC 93-343

MRR v GR (2010) FLC 93-424
P & P [2006] FMCAfam 518
Sigley & Evor [2011] FamCAFC 22
Taylor & Barker (2007) FLC 93-345

Wainder & Wainder (2011) FLC 93-473

Applicant:

MR ABRAHAMS

Respondent:

MS RATHBONE

File Number:

LNC 465 0f 2011

Judgment of:

Roberts FM

Hearing dates:

2, 3 and 4 October 2012

Date of Last Submission:

26 November 2012

Delivered at:

Launceston

Delivered on:

9 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr D Lewis

Solicitors for the Applicant:

Levis Stace & Cooper

Counsel for the Respondent:

Mr M Turnbull

Solicitors for the Respondent:

Bishops

ORDERS

That MS RATHBONE (“the mother”) and MR ABRAHAMS (“the father”) are to have equal shared parental responsibility for [X] born [in] 2008 (“the child”).
That the child is to live with the mother.
That the mother is permitted to relocate to Melbourne, Victoria with the child.
That if the father continues to reside in Tasmania the child is to spend time and communicate with him as follows:
(a)in Tasmania for half of the child’s Victorian school holiday periods at the end of Term 1 on the basis that the four day Easter period is included in 2013 and in alternate years thereafter;
(b)in Tasmania for the entirety of the child’s Victorian school holiday periods at the end of Terms 2, and 3 from the Saturday immediately after the conclusion of the term until the Saturday immediately prior to the start of the next term;
(c)during the Victorian school term for a minimum of three weekends as agreed between the mother and the father, but failing agreement:
(i)the first such weekend is to be the second weekend after the last weekend in the preceding school holiday period and is to occur in Tasmania;
(ii)the second such weekend is to be the fourth weekend and is to occur in Victoria; and
(iii)the third weekend is to be the sixth weekend and is to occur in Victoria.
(d)in each odd numbered year in Tasmania from 12 noon on Christmas Eve until 12 noon on Christmas Day;
(e)in each even numbered year in Tasmania from 12 noon on Christmas Day until 12 noon on Boxing Day;
(f)in odd numbered years for the first half of the long summer school holiday period in Tasmania;
(g)in even numbered years for the second half of the long summer school holiday period in Tasmania; and
(h)by…

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 ABRAHAMS & RATHBONE

Details

AGLC: ABRAHAMS & RATHBONE [2013] FMCAfam 1
Case: [2013] FMCAfam 1
Decision Date: 9 January 2013

CaseChat Overview and Summary

The matter before the court involved a dispute between MS RATHBONE (the mother) and MR ABRAHAMS (the father) regarding the custody and care of their child, born in 2008. The primary concern was determining the best living arrangements and shared parental responsibilities for the child, given the mother's intention to relocate to Melbourne, Victoria. The court had to address several legal issues, including the allocation of parental responsibilities, the best living arrangements for the child, and the specifics of visitation rights for the father if he remains in Tasmania or relocates to Melbourne.

The court was required to determine whether equal shared parental responsibility was appropriate for the parents, how to allocate the primary residence of the child, and the specifics of the father's visitation schedule under various scenarios, including if he remains in Tasmania or moves to Melbourne. Additionally, the court needed to decide the financial responsibilities for travel costs associated with the visitation schedule.

In making its determination, the court considered the welfare and best interests of the child as the paramount concern. The court concluded that equal shared parental responsibility was appropriate and that the child would reside with the mother. It was decided that the mother could relocate to Melbourne with the child. The court meticulously outlined a visitation schedule for the father, including specific periods during school terms, holidays, and special occasions, to ensure meaningful and consistent contact between the father and the child. The financial responsibility for travel was divided between the parents.

The court ordered that MS RATHBONE and MR ABRAHAMS have equal shared parental responsibility for the child, that the child reside with the mother, and that the mother could relocate to Melbourne. The court further specified the visitation schedule for the father under various scenarios and divided the travel costs between the parents.

Orders

Orders of the court

That MS RATHBONE (“the mother”) and MR ABRAHAMS (“the father”) are to have equal shared parental responsibility for [X] born [in] 2008 (“the child”).

That the child is to live with the mother.

That the mother is permitted to relocate to Melbourne, Victoria with the child.

That if the father continues to reside in Tasmania the child is to spend time and communicate with him as follows:

(a) in Tasmania for half of the child’s Victorian school holiday periods at the end of Term 1 on the basis that the four day Easter period is included in 2013 and in alternate years thereafter;

(b) in Tasmania for the entirety of the child’s Victorian school holiday periods at the end of Terms 2, and 3 from the Saturday immediately after the conclusion of the term until the Saturday immediately prior to the start of the next term;

(c) during the Victorian school term for a minimum of three weekends as agreed between the mother and the father, but failing agreement:

(i) the first such weekend is to be the second weekend after the last weekend in the preceding school holiday period and is to occur in Tasmania;

(ii) the second such weekend is to be the fourth weekend and is to occur in Victoria; and

(iii) the third weekend is to be the sixth weekend and is to occur in Victoria.

(d) in each odd numbered year in Tasmania from 12 noon on Christmas Eve until 12 noon on Christmas Day;

(e) in each even numbered year in Tasmania from 12 noon on Christmas Day until 12 noon on Boxing Day;

(f) in odd numbered years for the first half of the long summer school holiday period in Tasmania;

(g) in even numbered years for the second half of the long summer school holiday period in Tasmania; and

(h) by telephone or Skype at least three times per week, and on the child’s birthday, Easter Sunday and on Father’s Day if those days occur when the child is with the mother.

That for the purposes of the child spending time with the father in Tasmania in accordance with Order No. 4 hereof, the mother is to be responsible for the payment of 75% of any necessary airfares and the father is to be responsible for the payment of 25% of those fares.

That if the father resides in Melbourne, Victoria the child is to spend time and communicate with him as follows:

(a) during school terms on a two weekly rotation as follows;

(i) in week 1 from after school on Thursday to the commencement of school on Monday;

(ii) in week 2 from after school on Thursday to the commencement of school the following Friday; and

(iii) for the purposes of such time the father shall collect and return the child to and from school at the commencement and conclusion of his time;

(b) for half of the child’s Victorian school holiday periods at the end of Term 1 on the basis that the four day Easter period is included in odd numbered years;

(c) for one half of child’s Victorian school holiday periods at the end of Terms 2 and 3 at times agreed between the parties but failing agreement for the first half in odd numbered years and the second half in even numbered years;

(d) for one half of the child’s summer school holidays in alternating fortnightly blocks as follows:

(i) in those holidays commencing in even numbered years the father is to have the first fortnight; and

(ii) in those holidays commencing in odd numbered years the father is to have the second fortnight;

(e) at Christmas in accordance with Order No. 4(d) and (e) hereof;

(f) if the child is not otherwise spending time with the father on Father’s Day, then from 10.00 am until 6.00 pm on Father’s Day; and

(g) if the child is spending time with the father on Mother’s Day in accordance with these Orders, then that time will be suspended from 10.00 am until 6.00 pm on Mother’s Day and the father shall otherwise return the child to the mother’s care.

That the child is to spend time with the father at such further or other times as may be agreed between the father and the mother from time to time.

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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