Andris and Dellis - [2013] FCCA 414

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDRIS & DELLIS

[2013] FCCA 414

Catchwords:
FAMILY LAW – Parenting – relocation Sydney to Melbourne – one of the children with special needs – mother socially and emotionally isolated in Sydney – mother seeking to relocate closer to family supports in Melbourne – mother in difficult financial circumstances in Sydney rental market – limited financial support from father – father’s lack of empathy with mother’s circumstances – father’s questionable priorities – real prospect of mother’s parenting capacity being diminished if remains in Sydney – risk of adverse impact on children – relocation allowed.

Legislation:
Family Law Act 1975, ss.60B, 60CA,60CC, 61DA, 65DAA, 95AAA and Part VII

AMS and AIF (1999) 24 Fam LR 756
Goode v Goode (2007) 36 Fam LR 422
MRR v GRR [2010] HCA 4
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Morgan v Miles (2008) Fam LR 275
Taylor v Barker (2008) 37 Fam LR 461
Malcolm & Monroe [2011] FamCAFC 16
F & F [2007] FMCAfam 831
Collu & Rinaldo [2010] FamCAFC 53
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

Applicant:

MS ANDRIS

Respondent:

MR DELLIS

File Number:

SYC 2843 of 2011

Judgment of:

Judge Foster

Hearing dates:

21 and 22 February 2013

14 March 2013

Date of Last Submission:

19 April 2013

Delivered at:

Sydney

Delivered on:

30 May 2013

REPRESENTATION

Counsel for the Respondent:

Ms Spain

Solicitors for the Respondent:

Horizons Community Legal Centre

Counsel for the Independent Children’s Lawyer:

Mr Wong

Solicitors for the Independent Children’s Lawyer:

Mahony Family Lawyers

ORDERS

That the mother be permitted to relocate the residence of the children [X] born [in] 2002 and [Y] born [in] 2003 (“the children”) to the Greater Melbourne area and that the mother be permitted to enrol the children at [B] School.
That the mother and father have equal shared parental responsibility for the children.
That the children spend time with the father as agreed between both the mother and father in writing including SMS or email and in default of agreement:
(a)During the Victorian school terms on not less than two weekends each term with such weekends to include any long weekends (such as Labour Day, Queens Birthday, Anzac Day etc.) occurring during such terms and the Fathers Day weekend but otherwise on the third and sixth weekends from Friday evening (or Thursday if Friday is a pupil free day) until Sunday evening (or Monday if a long weekend or pupil free day) and that for the purposes of the children’s weekend time with the father in Sydney the mother and father shall organise and book flights as early as practicable to reduce cost and shall use their best endeavours to ensure that the children arrive in Sydney by no later than 7.00pm on the commencing day of weekend time and return to Melbourne by no later than 5.00pm (6.00pm daylight saving time) on the last day of such weekend time.
(b)For one…

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 Andris and Dellis

Details

AGLC: ANDRIS & DELLIS [2013] FCCA 414
Case: [2013] FCCA 414
Decision Date: 30 May 2013

CaseChat Overview and Summary

In the matter of Andris and Dellis, Judge Foster of the Federal Circuit Court of Australia considered a dispute between the mother and father concerning the residence and time spent with their two children. The mother sought permission to relocate the children to the Greater Melbourne area and enrol them at a specific school, while the father sought orders regarding parental responsibility and the children's time with him.

The court was required to determine whether to grant the mother's application for relocation, the nature of parental responsibility, and the specific arrangements for the children's time with each parent, including school holidays and travel. Additionally, the court needed to address provisions for communication between the parents and children, and procedures in the event of a medical emergency.

Judge Foster ordered that the mother be permitted to relocate the children to the Greater Melbourne area and enrol them at the specified school. The court also made orders for equal shared parental responsibility. The detailed orders outlined specific arrangements for the children's time with the father, including during school terms and holidays, with provisions for travel costs and communication methods. The court also established protocols for notifying the other parent in case of a medical emergency and authorised both parents to obtain information from the children's schools.

Orders

Orders of the court

That the mother be permitted to relocate the residence of the children [X] born [in] 2002 and [Y] born [in] 2003 (“the children”) to the Greater Melbourne area and that the mother be permitted to enrol the children at [B] School.

That the mother and father have equal shared parental responsibility for the children.

That the children spend time with the father as agreed between both the mother and father in writing including SMS or email and in default of agreement:

(a) During the Victorian school terms on not less than two weekends each term with such weekends to include any long weekends (such as Labour Day, Queens Birthday, Anzac Day etc.) occurring during such terms and the Fathers Day weekend but otherwise on the third and sixth weekends from Friday evening (or Thursday if Friday is a pupil free day) until Sunday evening (or Monday if a long weekend or pupil free day) and that for the purposes of the children’s weekend time with the father in Sydney the mother and father shall organise and book flights as early as practicable to reduce cost and shall use their best endeavours to ensure that the children arrive in Sydney by no later than 7.00pm on the commencing day of weekend time and return to Melbourne by no later than 5.00pm (6.00pm daylight saving time) on the last day of such weekend time.

(b) For one half of Victorian school holiday periods as agreed between the mother and father in writing including SMS or email and failing agreement the first half of such periods commencing by no later than 7.00pm in Sydney on the evening that term ends to about 5.00pm (6.00pm daylight saving time) in Melbourne on the midpoint day in even numbered years and the second half of such periods commencing at about 11.00am in Sydney on the midpoint day until about 5.00pm (6.00pm daylight saving time) in Melbourne on the day prior to resumption of school term in odd numbered years.

(c) At such times and on such occasions as the father may be in Melbourne upon him giving to the mother not less than seven days notice in writing and in that event the children shall spend time with the father for a period of not more than three consecutive nights on other than a weekend with the father to collect the children from school on the first day of such period and return the children to school on the last day of such period.

(d) At such other times and on such occasions relating to the children’s education, health, sporting activities, extracurricular activities, religious education or other occasions relating to the welfare of the children where the attendance of either or both parents is to be reasonably expected.

(e) That the father pay for cost of travel and facilitate the children’s return flights from Melbourne to Sydney and return on the first occasion and each alternate occasion thereafter of the children spending time with him and the mother pay for the cost of travel and facilitate the children’s return flights from Melbourne to Sydney and return for each intervening occasion.

(f) That the mother shall pay for the costs of her own flights on each occasion if the children require accompanying travel from Melbourne to Sydney.

(g) That the father pay for the costs of his own flight on each occasion if the children require accompanying travel from Sydney to Melbourne.

(h) That the mother and father be at liberty to contact the children through telephone, Skype or e-mail at a time as agreed between both parties and failing agreement every Monday, Wednesday and Saturday between 6.00pm and 7.00pm when the children are not otherwise in their care, and the party caring for the children shall facilitate such communication by ensuring the availability of the children, with the other party to initiate contact with the children and for the purposes of this order the parties shall keep each other informed at all times of their landline telephone numbers, mobile telephone numbers and e-mail addresses.

(i) That the party not caring for the children shall be at liberty to Skype with the children on Christmas day, Fathers/Mothers day, the parents birthday and the children’s birthdays at a time agreed between the parties and failing agreement from 10.00am until 11.00am and if a school day between 6.00pm and 7.00pm.

That in the event of the children suffering a medical emergency requiring medical attention while spending time with either parent:

(a) The other parent is to be notified as soon as practicable.

(b) The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends and as soon as possible.

(c) The medical practitioner or medical facility be advised that the other parent has access to the child’s records and the information obtained with them upon request.

That each party is hereby authorised to obtain from the children’s schools all notices, letters, school reports and invitations and to attend activities to which parents are reasonably expected to attend.

That the parties advise the other of any change of residential address not less than 14 days before such change.

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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