FAMILY COURT OF AUSTRALIA
| AHCRAFT & HABER | [2010] FamCA 6 |
| FAMILY LAW – CHILDREN – Relocation of mother – Father’s opposition to move – Equal shared parental responsibility – Substantial and significant time – Electronic communication – Parenting proposals of both parties – Issues of conflict and communication – Mother’s emotional health – Surname – Circumstances of mother’s fiancé – Examination of all competing residential and travel circumstances – Best interests of child – Observation of witnesses – Standard of proof – Relevant legal principles for parenting cases and relocation issues – Specific issues – Costs – Venue |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 65DAA, 117 Family Law Rules 2004 (Cth) Rules 19.04, 19.50 Evidence Act 1995 (Cth) s 140 |
| A v A: Relocation approach (2000) FLC 93-035 AMS v AIF; AIF v AMS (1999) FLC 92-852 Briginshaw v Briginshaw (1938) 60 CLR 336 Fitzroy & Fitzroy & Ors [2009] FamCA 954 H & E (1999) FLC 92-845 In re J (a child) (FC) [2005] UKHL 40 Lamereaux and Noirnot [2008] FLC 93-364 McCall and Clark (2009) FLC 93-405 Minagall v Ayres (1966) SASR 151 MRR v GR [2009] HCATranscript 316 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 Pitken and Hendry [2008] FamCA 186 Rosa and Rosa [2009] FamCAFC 81 Sampson v Hartnett (No. 10) (2007) FLC 93-350 Starr and Duggan [2009] FamCAFC 115 Taylor and Barker (2007) FLC 93-345 U v U (2002) FLC 93-112 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Wiley and Wiley [2008] FamCAFC 153 |
| APPLICANT: | MR AHCRAFT |
| RESPONDENT: | MS HABER |
| FILE NUMBER: | MLC | 1744 | of | 2009 |
| DATE DELIVERED: | 15 JANUARY 2010 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 5, 6, 7 & 8 JANUARY 2010 |
REPRESENTATION
| COUNSEL FOR THE 1ST APPLICANT: | MS MACMILLAN SC |
| SOLICITOR FOR THE APPLICANT: | HOGG & REID |
| COUNSEL FOR THE RESPONDENT: | MS SMALLWOOD |
| SOLICITOR FOR THE RESPONDENT: | PEARSONS BARRISTERS & SOLICITORS |
TABLE OF CONTENTS
ORDERS
Orders
MR AHCRAFT
REASONS FOR JUDGMENT
ISSUES
APPLICATION
AFFIDAVITS RELIED UPON BY PARTIES
PREVIOUS COURT ORDERS
BACKGROUND FACTS
RESIDENTIAL OPTIONS
OBSERVATION OF WITNESSES
STANDARD OF PROOF
RELEVANT LEGAL PRINCIPLES
FAMILY LAW ACT 1975 (CTH)
FATHER’S PARENTING AND RESIDENTIAL PROPOSAL
MOTHER’S PARENTING AND RESIDENTIAL PROPOSAL
FATHER
THE CHILD’S SURNAME
MOTHER
MOTHER’S EMOTIONAL HEALTH
PARTIES’ COMMUNICATION ISSUES
THE CHILD
MR P
FAMILY REPORTS
THE ACT – RELEVANT SECTIONS EVALUATED
SECTION 60CC CONSIDERATIONS
SECTION 65DAA
SPECIFIC ISSUES
COSTS
DELAY IN RELOCATION
VENUE
Orders
IT IS ORDERED BY CONSENT:
THAT the mother and father (“the parties”) have the equal shared parental responsibility of the child N (“N”) born … April 2004.
IT IS FURTHER ORDERED – NOT BY CONSENT:
THAT the orders pronounced in the Federal Magistrates Court on 3 December 2007 be discharged.
THAT the child live with her mother.
THAT the mother be permitted to relocate the child to live in Cairns, North Queensland, from Tuesday 6 April 2010.
THAT until the child is relocated to Cairns…
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- AGLC
- Ahcraft v Haber [2010] FamCA 6
- Case
- [2010] FamCA 6
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the appropriate parenting orders under the *Family Law Act 1975* (Cth), specifically addressing the considerations outlined in section 60CC, and the implications of section 65DAA. The court had to weigh the father's and mother's respective parenting and residential proposals, taking into account factors such as the mother's emotional health, communication issues between the parties, and the child's best interests. A significant aspect of the determination involved the potential delay in relocation and the venue for future arrangements.
Young J's reasoning led to consent orders regarding equal shared parental responsibility for N. However, the court made non-consent orders discharging previous Federal Magistrates Court orders and establishing new arrangements. The child was ordered to live with the mother, who was permitted to relocate N to Cairns from April 6, 2010. The orders detailed specific time arrangements for the father to spend with N, both before and after the relocation, including provisions for telephone and electronic communication. The mother was also ordered to facilitate the child's travel to Cairns and to ensure appropriate communication technology was available. Further orders addressed the child retaining the surname Ahcraft, the mother's cooperation with the father's extended family, and the provision of school reports to the father. The court made no order as to costs, with each party bearing their own.
Orders
Orders of the court
Orders
MR AHCRAFT
REASONS FOR JUDGMENT
ISSUES
APPLICATION
AFFIDAVITS RELIED UPON BY PARTIES
PREVIOUS COURT ORDERS
BACKGROUND FACTS
RESIDENTIAL OPTIONS
OBSERVATION OF WITNESSES
STANDARD OF PROOF
RELEVANT LEGAL PRINCIPLES
FAMILY LAW ACT 1975 (CTH)
FATHER’S PARENTING AND RESIDENTIAL PROPOSAL
MOTHER’S PARENTING AND RESIDENTIAL PROPOSAL
FATHER
THE CHILD’S SURNAME
MOTHER
MOTHER’S EMOTIONAL HEALTH
PARTIES’ COMMUNICATION ISSUES
THE CHILD
MR P
FAMILY REPORTS
THE ACT – RELEVANT SECTIONS EVALUATED
SECTION 60CC CONSIDERATIONS
SECTION 65DAA
SPECIFIC ISSUES
COSTS
DELAY IN RELOCATION
VENUE
Orders
IT IS ORDERED BY CONSENT:
1.
THAT the mother and father (“the parties”) have the equal shared parental responsibility of the child N (“N”) born … April 2004.
IT IS FURTHER ORDERED – NOT BY CONSENT:
2.
THAT the orders pronounced in the Federal Magistrates Court on 3 December 2007 be discharged.
3.
THAT the child live with her mother.
4.
THAT the mother be permitted to relocate the child to live in Cairns, North Queensland, from Tuesday 6 April 2010.
5.
THAT until the child is relocated to Cairns the father spend time with her:
(a) on each alternate weekend from after school on Friday until the commencement of her school the following Monday morning (and this is a continuation of the current timetable pursuant to the now discharged orders);
(b) in each other week from after school on Wednesday until the commencement of her school on Friday morning;
(c) for nine (9) days of the first term Victorian school holidays in this year to conclude on Easter Monday 5 April 2010;
(d) by telephone on three (3) occasions in each week.
6.
THAT for the balance of 2010, and from the commencement of the Queensland second school term, the father spend time with the child as follows:
(a) for nine (9) consecutive days, including her travel days, in the second and third Queensland school term holidays (and the father is to have arranged leave from his employment during these periods);
(b) for the first half of the December / January long school holidays (to include Christmas Day and New Year’s Day) in 2010 / 2011;
(c) by telephone, or other form of electronic communication including Skype on three (3) occasions in each week when the child is in Cairns for up to thirty (30) minutes on each occasion with the father to be responsible to telephone or make contact;
(d) on a further two (2) weekends (but for not more than three (3) days on each visit) during the balance of this calendar year when the child is in Cairns and at the father’s expense and upon him giving twenty-eight (28) days prior written notice (and any absence by the child from her school is to be kept to a minimum).
7.
THAT in calendar year 2011 and each year thereafter the father spend time with the child as follows:
(a) for the whole of the first term Queensland school holidays;
(b) for the first half of each of the second and third term Queensland school holidays, at dates and times to be agreed between the parties;
(c) for one half of the December / January long school holiday periods (and to be the second half in 2011 / 2012) and in alternate years thereafter and to be the first half in 2012 / 2013 and each alternate year thereafter;
(d) by telephone, or electronic communication including Skype on three (3) occasions in each week when the child is in Cairns for up to thirty (30) minutes on each occasion with the father to be responsible to telephone or make contact;
(d) on a further three (3) weekends in Cairns (but for not more than three (3) days on each visit) during the period of a calendar year and at the father’s expense and upon him giving twenty-eight (28) days prior written notice (and any absence by the child from her school is to be kept to a minimum).
8.
THAT the mother is to purchase in each calendar year for the school holidays, commencing this year, three (3) and thereafter four (4) return air fares for the child from Melbourne to Cairns (direct), as an unaccompanied minor and with payment of any additional fee or costs, and those air fares are to be on dates agreed to between the parties and previously arranged on no less than twenty-eight (28) days prior written notice and additionally the mother is to deliver and collect the child punctually to and from Cairns Airport.
9.
THAT the father is to pay all of his air fare and travel costs, if and when applicable, to visit the child in Cairns pursuant to Orders 6(d) and 7(e) hereof and if for any reason the child is to spend any other time with the father, in Melbourne or elsewhere, by agreement with the mother, then any such travel is to be at the expense of the father.
10.
THAT the mother is to immediately acquire, upon her relocation to Cairns, a computer and all necessary electronic equipment and programmes to operate Skype or other telecommunication services reasonably required to ensure the father’s electronic communication and it is to be properly maintained by her with all of her monthly telecommunication fees paid punctually.
11.
THAT when the child is spending time with her father in Melbourne, the mother be entitled to telephone her or have electronic communication including Skype on three (3) occasions in each week for up to thirty (30) minutes duration on each occasion and the mother to be responsible to telephone or make such contact.
12.
THAT the mother and father are to keep each other immediately informed of any medical, health, personal or education issue of and concerning the child.
13.
THAT the mother and father are at all times to keep each other informed at all times of their residential address, telephone number and e-mail address.
14.
THAT the mother, on behalf of the child is to accept her enrolment and attend at PA Primary School (in the eastern Melbourne area) for first school term 2010 and at the expense of the mother and prior to her then relocation to Cairns.
15.
THAT the child retain the surname of and be known as Ahcraft, and at all times to be enrolled at school and in all of her activities under that surname.
16.
THAT the mother, when living in Cairns is to reasonably co-operate with other members of the father’s extended family and is to make available the child to spend reasonable time with them (and in particular the father’s adult children O and E).
17.
THAT the mother forthwith give her written permission and authorisation to any school at which the child may attend in Cairns that they are to facilitate the punctual release to the father of school reports and other relevant school documents and information.
18.
THAT all subpoenaed documents be forthwith returned by the Subpoenas Clerk, Family Court, Melbourne Registry to the person or organisation who produced the documents to the Court.
19.
THAT there be no order as to costs with each of the mother and father paying all of their own costs of and incidental to these proceedings.
20.
THAT all extant applications be otherwise dismissed and the proceedings be removed from the docket of Young J.
21.
Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.
IT IS CERTIFIED
22.
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel including Senior Counsel for each of the mother and father.
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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