FAMILY COURT OF AUSTRALIA
| ADAMSON & ADAMSON | [2018] FamCA 523 |
| FAMILY LAW – CHILDREN – Best interests – With whom the children live – With whom the children spend time – Presumption of equal shared parental responsibility – Meaningful relationship – Unacceptable risk – Where the mother has unilaterally relocated the children – Where the mother alleges that the father has mental health issues – Where the mother alleges that the father has a gambling addiction – Where the mother says she does not have adequate support. |
| Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61DA, 65DAA |
| AMS v AIF [1999] HCA 26 Attwill & Marden [2018] FCCA 1401B and B (1993) FLC 92-357 Bolitho & Cohen [2005] FamCA 458 Cales & Cales [2010] FamCAFC 237 Cowling & Cowling (1998) FLC 92-801 Goode & Goode (2006) FLC 93-286 M v M (1988) 166 CLR 69 Morgan & Miles (2007) FLC 93-343 SS v AH [2010] FamCAFC 13 Sampson & Hartnett (No 10) [2007] FamCA 1365 Sigley v Evor (2011) 44 Fam LR 439 U v U [2002] HCA 36 |
| APPLICANT: | Mr Adamson |
| RESPONDENT: | Ms Adamson |
| FILE NUMBER: | SYC 3439 of 2018 |
| DATE DELIVERED: | 19 July 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 18 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Millar |
| SOLICITOR FOR THE APPLICANT: | Broun Abrahams Burreket |
| COUNSEL FOR THE RESPONDENT: | Ms Fraser |
| SOLICITOR FOR THE RESPONDENT: | Advance Family Law |
Orders
Within 14 days of the date of these Orders, the mother is to cause X born … 2015, Y, born … 2017 and Z, born … 2017 (“the children”) to be returned to, and thereafter live in, an area within 10 kilometres of Suburb B NSW (“the Suburb B area”).
Subject to order 6 herein, upon the return of the children to the Suburb B area in accordance with order 1 herein, the mother be and is hereby restrained from relocating the children's residence from the Suburb B area, without the father's written consent or an order of the Court.
To facilitate the children's return to the Suburb B area pursuant to order 1 herein, the mother may elect to live with the children in the property at C Street Road, Suburb B NSW (“the Suburb B property”) presently occupied by the father, provided that she provides the father’s solicitor with 72 hours’ written notice of her intention to do so.
Upon written notice being provided by the mother of her intention to live in the Suburb B property with the children, the father shall vacate the Suburb B property within 72 hours and the mother will, thereafter, have exclusive occupation of the Suburb B property, pending further order.
In the event that the mother elects to live at the Suburb B property with the children, the father must continue to pay the mortgage, utilities and expenses relating to that property, within 28 days of each relevant payment becoming due.
The restraint imposed on the mother by order 2…
Continue reading Adamson & Adamson
Sign in free to access the full text
- AGLC
- Adamson & Adamson [2018] FamCA 523
- Case
- [2018] FamCA 523
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary residence of the children, the conditions under which the mother could relocate with them, and the specific parenting arrangements, including time spent with each parent. Additionally, the court needed to address the appointment of a single expert to report on various welfare-related matters concerning the children.
McClelland J ordered that the children be returned to an area within 10 kilometres of Suburb B, NSW, and reside there. The mother was restrained from relocating the children from this area without the father's consent or a court order, provided certain conditions were met by the father. These conditions included facilitating the mother's temporary occupation of the family home with the children and continuing financial responsibilities for the property, as well as the father's mother covering daycare fees. The court also established a schedule for the children to spend time with the father and imposed prohibitions on derogatory comments about either parent and on physical discipline. A single expert was appointed to report on the children's welfare, with specific areas of inquiry outlined, and the parties were ordered to cooperate in the preparation of this report.
Orders
Orders of the court
1.
Within 14 days of the date of these Orders, the mother is to cause X born … 2015, Y, born … 2017 and Z, born … 2017 (“the children”) to be returned to, and thereafter live in, an area within 10 kilometres of Suburb B NSW (“the Suburb B area”).
2.
Subject to order 6 herein, upon the return of the children to the Suburb B area in accordance with order 1 herein, the mother be and is hereby restrained from relocating the children's residence from the Suburb B area, without the father's written consent or an order of the Court.
3.
To facilitate the children's return to the Suburb B area pursuant to order 1 herein, the mother may elect to live with the children in the property at C Street Road, Suburb B NSW (“the Suburb B property”) presently occupied by the father, provided that she provides the father’s solicitor with 72 hours’ written notice of her intention to do so.
4.
Upon written notice being provided by the mother of her intention to live in the Suburb B property with the children, the father shall vacate the Suburb B property within 72 hours and the mother will, thereafter, have exclusive occupation of the Suburb B property, pending further order.
5.
In the event that the mother elects to live at the Suburb B property with the children, the father must continue to pay the mortgage, utilities and expenses relating to that property, within 28 days of each relevant payment becoming due.
6.
The restraint imposed on the mother by order 2 herein is conditional upon:
(a) The father complying with orders 4 and 5 herein, if an election is made by the mother pursuant to order 3 herein; and
(b) The father’s mother paying the fees associated with the children attending daycare.
Parenting Orders
7.
Upon the children being returned to the Suburb B area in accordance with order 1 herein, the children will live with the mother and spend time with the father, pending further order or the written agreement of the parties, as follows:
(a) On the weekend immediately subsequent to the children’s return to the Suburb B area from 10:00 am to 4:00 pm on Saturday and each weekend thereafter; and
(b) Each Wednesday from 3:00 pm to 6:00 pm.
8.
For the purpose of effecting changeover of the children, in terms of order 7 herein, pending further order, the father will attend the mother’s residence at the start of his time to collect the children and return them to the mother’s residence at the end of his time. If the children are at daycare at the start of the father’s time, he is to collect them from daycare.
9.
Neither parent shall speak critically or in a derogatory manner about the other parent or members of the other parent's family in the children's presence, or within their hearing, or permit any other person to do so.
10.
Neither parent shall use physical means to discipline the children or permit any other person to do so.
Single Expert Report
11.
Pursuant to Part 15.5 of the Family Law Rules 2004, Dr D be appointed as the Single Expert witness (“the Single Expert”) in these proceedings to enquire into and report upon matters relating to the welfare of the children and in preparing the report to the Court, the Single Expert be requested to consider the following matters:
(a) Whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to any abuse, neglect or family violence;
(b) The effect on the children of any family violence to which they may have been exposed;
(c) Any views expressed by the children, any factors (such as maturity and level of understanding) that may affect the weight to be recorded to those views;
(d) The relationship between the children and each other and with each of the parents and any other relevant person;
(e) The willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent;
(f) The likely effect of any changes in the children's circumstances, including the likely effect of the children on any separation from either of the parents or any other person with whom the children have been living;
(g) The capacity of each parent and any other person to provide for the needs of the children, including emotional and intellectual needs;
(h) The attitude to the children and the responsibilities of parenthood, demonstrated by each of the children's parents (and any other relevant person);
(i) The effect on the children of spending equal time or substantial and significant time, with each parent having regard to the parent's current and future capacity to:
(i) Implement such an arrangement; and
(ii) Communicate with each other and resolve difficulties that may arise;
(j) The mental state of both parties insofar as it relates to parenting issues;
(k) The mental health/special needs of the children; and
(l) Any other matter the Single Expert considers relevant.
12.
For the purpose of the report, the Single Expert is instructed to interview each of the parties, the children and other relevant person/s.
13.
The parties do all things necessary to facilitate the preparation of the report of the Single Expert, including:
(a) Attending on the Single Expert and arranging for the children and other relevant person/s to also attend; and
(b) Providing copies of all relevant documents filed on their behalf in these proceedings to the Single Expert.
14.
Each of the parties pay one half of the cost of the Single Expert’s report.
15.
The parties have liberty to apply on 7 days’ written notice to the Court and the other party.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.