B & B

Case [2007] FMCAfam 82 16 February 2007

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & B

[2007] FMCAfam 82

FAMILY LAW – Children – interim proceedings – unilateral relocation of one party with the children to Brisbane – order that the children return to Cairns.

Family Law Act1975, ss.60B, 60CA, 60CC, 61C, 61DA, 61DB, 64B, 65DAA, 65DAC, 65DAE
Family Law (Shared Parental Responsibility) Act 2006

Goode & Goode [2006] FamCA 1346
B & B [2006] FamCA 1207
AMS v AIF (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Campbell and Spalding [1998] FamCA 66
R & R [2007] FMCAfam 29

Applicant:

R W B

Respondent:

R J B

File number:

BRM 9921 of 2006

Judgment of:

Wilson FM

Hearing date:

8 February 2007

Date of last submission:

8 February 2007

Delivered at:

Brisbane

Delivered on:

16 February 2007

REPRESENTATION

Counsel for the Applicant:

Mr Scott-Mackenzie

Solicitors for the Applicant:

Simonidis Shoebridge Lawyers

Counsel for the Respondent:

Ms Williams

Solicitors for the Respondent:

James White Lawyers

ORDERS

(1)Until the trial of this action or earlier order, the applicant and the respondent share equal parental responsibility for the children B B and P B;
(2)Otherwise each party shall be responsible for the day to day care and welfare of the children, whilst the children are in their care;
(3)On condition that the applicant meet the reasonable travel costs of the respondent (if she decides to return to Cairns) and the two children from Brisbane to Cairns, then, until the trial of this action or earlier order:
(i) If the respondent returns to Cairns:
(a) the children shall live with the respondent in Cairns;
(b)the children shall spend equal time with the applicant and the respondent as agreed, but failing agreement:
(I) In week one of a fortnightly cycle from 6pm Monday until 6pm Tuesday, 6pm Wednesday until 6pm Thursday, and 9am Saturday until 6pm Sunday – with the applicant, and the remaining time with the respondent;
(II)In week two of a fortnightly cycle the time spent with each parent specified in subparagraph (I) hereof shall be spent with the other parent;

(ii)If the respondent does not return to Cairns:
(a)the children shall live with the applicant in Cairns;
(b)the children shall spend such time with the respondent as may be agreed, provided that:
(I) the respondent not remove the children from Cairns, without the written agreement of the applicant first obtained;
(II)the respondent shall be responsible for all costs associated with her spending time with the children.

(4)For the purposes of Order 3 the applicant shall pre-pay airfares from Brisbane to Cairns:
(a)once written confirmation has been received that the child B B has been enrolled in a school in Cairns;

(b) not earlier than 7 days from the date of these Orders
(5)For the purpose of changeover, the party with whom the children are then spending time shall deliver the children to the other party at the conclusion of such time;
(6)Both parties are authorized to, and so far as necessary shall direct…

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 B & B

Details

AGLC: B & B [2007] FMCAfam 82
Case: [2007] FMCAfam 82
Decision Date: 16 February 2007

CaseChat Overview and Summary

The matter before the court involved parents B and B, who were engaged in a dispute over the care and welfare of their two children, B B and P B. The case was heard and determined by the Family Court of Australia, which has jurisdiction over family law matters under the Family Law Act 1975. The primary issue before the court was the allocation of parental responsibility and the determination of a suitable living arrangement for the children, pending the resolution of the broader parenting dispute. The court had to decide whether the children should live primarily with one parent or the other, and if so, under what conditions, including the sharing of parental responsibilities and the logistics of the children's travel between Brisbane and Cairns.

In determining the appropriate orders, the court considered the welfare and best interests of the children as the paramount concern. The court found that, until the matter was resolved, the parents should share equal parental responsibility. However, in terms of day-to-day care, each parent was to be responsible for the children when they were in their care. The court also considered the logistical and financial implications of the parents' respective locations and decided that the children should live primarily with the respondent in Cairns, provided that the applicant covered certain travel costs. The court set out a detailed fortnightly schedule for the children's time with each parent and imposed conditions to ensure the smooth operation of the arrangement. The court further mandated that both parents facilitate communication and participation between the children and the other parent, including sharing school and daycare information and attending related events.

The court issued comprehensive orders to govern the children's living arrangements and the parents' responsibilities until the matter was resolved. The orders included provisions for the sharing of parental responsibility, the children's primary residence, a detailed time-sharing schedule, financial obligations related to travel, and directives for communication and participation between the children and the non-resident parent. The court also transferred the matter to Cairns for further hearing, recognising the geographical factors involved in the case. These orders were designed to provide stability and clarity for the children while the broader parenting dispute was being determined.

Orders

Orders of the court

(1) Until the trial of this action or earlier order, the applicant and the respondent share equal parental responsibility for the children B B and P B;

(2) Otherwise each party shall be responsible for the day to day care and welfare of the children, whilst the children are in their care;

(3) On condition that the applicant meet the reasonable travel costs of the respondent (if she decides to return to Cairns) and the two children from Brisbane to Cairns, then, until the trial of this action or earlier order:

(i) If the respondent returns to Cairns:

(a) the children shall live with the respondent in Cairns;

(b) the children shall spend equal time with the applicant and the respondent as agreed, but failing agreement:

(I) In week one of a fortnightly cycle from 6pm Monday until 6pm Tuesday, 6pm Wednesday until 6pm Thursday, and 9am Saturday until 6pm Sunday – with the applicant, and the remaining time with the respondent;

(II)In week two of a fortnightly cycle the time spent with each parent specified in subparagraph (I) hereof shall be spent with the other parent;

(ii) If the respondent does not return to Cairns:

(a) the children shall live with the applicant in Cairns;

(b) the children shall spend such time with the respondent as may be agreed, provided that:

(I) the respondent not remove the children from Cairns, without the written agreement of the applicant first obtained;

(II)the respondent shall be responsible for all costs associated with her spending time with the children.

(4) For the purposes of Order 3 the applicant shall pre-pay airfares from Brisbane to Cairns:

(a) once written confirmation has been received that the child B B has been enrolled in a school in Cairns;

(b) not earlier than 7 days from the date of these Orders

(5) For the purpose of changeover, the party with whom the children are then spending time shall deliver the children to the other party at the conclusion of such time;

(6) Both parties are authorized to, and so far as necessary shall direct any school or daycare facility attended by either child to ensure that the other parent:

(a) Receive any report, newsletter, photograph order form, or other communication or information pertaining to the child;

(b) Attend any event organized relating to the child.

(7) The matter is transferred to Cairns for hearing, and such further directions as the Federal Magistrate in Cairns considers appropriate.

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

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Actions

Citations

B & B [2007] FMCAfam 82

Most Recent Citation

GI & TI [2007] FMCAfam 302

Cases Citing This Decision

Marcic and Tait [2010] FMCAfam 1447
Citation 1 (Para 3)

….” [1] [1] Goode , FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“ B & B ”).…
Aaron & Aaron [2008] FMCAfam 169
Citation 2 (Para 1)

…6] [46] Goode , FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“ B & B ”).…
Tucker and Tucker [2008] FMCAfam 54
Citation 3 (Para 1)

…1] [31] Goode , FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“ B & B ”).…
B & S-B [2007] FMCAfam 962
Citation 4 (Para 1)

…[9] [9] Goode , FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“ B & B ”).…
R & W [2007] FMCAfam 868
Citation 5 (Para 1)

…2] [12] Goode , FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“ B & B ”).…
S & S [2007] FMCAfam 898
Citation 6 (Para 1)

…[9] [9] Goode , FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“ B & B ”).…
T and R [2007] FMCAfam 867
Citation 7 (Para 1)

…ild. [7] [7] Goode , FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“ B & B ”).…
RP and JP [2007] FMCAfam 654
Citation 8 (Para 1)

…[3] [3] Goode , FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“ B & B ”).…
ASR and BP [2007] FMCAfam 552
Citation 9

…Aberdeen (City) v Watt (1901) 3 F 787 Alam v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 583 B & B [2007] FMCAfam 82 Bray & Kozaczek [2007] FMCAfam 310 Cardaklija & Cardaklija [2007] FMCAfam 16 Dunlop Perdrian Rubber Co Ltd v Federated Rubber Workers Union of Australia (1931) 46 CLR 329…
SL and JS and Anor [2007] FMCAfam 537
Citation 10 (Para 2)

…eit that it was said in the context of an interim parenting order, the Court adopts what was said by this Court in B & B[9] where the Court said: [9] [2007] FMCAfam 82 (“ B & B ”). The principles to be applied on the determination of an interim application such as the present were recently reconsidered by the Full C…
Schafer & Becker [2007] FMCAfam 525
Citation 11 (Para 2)

…Therefore, the Court adopts what was said by this Court in B & B[30] where the Court said, when dealing with an application for interim orders: [30] [2007] FMCAfam 82 (“ B & B ”). The principles to be applied on the determination of an interim application such as the present were recently reconsidered by the Full Co…
B and E [2007] FMCAfam 398
Citation 12 (Para 2)

…Therefore, and albeit that it was said in the context of an interim parenting order, the Court adopts what was said by this Court in B & B [2007] FMCAfam 82 (“B & B”) where Wilson FM said: The principles to be applied on the determination of an interim application such as the present were recently reconsidered by th…
GTS & DMS [2007] FMCAfam 363
Citation 13 (Para 2)

…Therefore, and albeit that was said in the context of an interim parenting order, the Court adopts what was said by this Court in B & B [2007] FMCAfam 82 (“ B & B ”) where Wilson FM said: The principles to be applied on the determination of an interim application such as the present were recently reconsidered by the…
GI & TI [2007] FMCAfam 302
Citation 14 (Para 1)

…In relation to the principles to be adopted the Court adopts what was said by this Court in B & B [2007] FMCAfam 82 at paras 2-5 per Wilson FM (“B & B” ): “2. The principles to be applied on the determination of an interim application such as the present were recently reconsidered by the Full Court of the Family Cou…

See all citing cases →

Cases Cited

R and R [2007] FMCAfam 29
Citation 1 (Para 8)

…e mother, on condition that she and the children return to Cairns. That is the approach that has been taken in a number of cases, most recently R & R [2007] FMCAfam 29.…
Goode & Goode [2006] FamCA 1346
Citation 2 (Para 2)

…on the determination of an interim application such as the present were recently reconsidered by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346. The best interests of the children remain the paramount consideration: Section 60CA of the Act; Goode & Goode [2006] FamCA 1346 at [69].…
B & B [2006] FamCA 1207
Citation 3 (Para 18)

…In B & B [2006] FamCA 1207 at [34]ff Warnick JA discussed the interplay between the paramountcy principle of “best interests of the child” and the so-called right of a parent to move, discussed in cases such as AMS v AIF (1999) 199 CLR 160, and U v U (2002) 211 CLR 238. His Honour considered that a proposal to reloc…
U v U [2002] HCA 36
Citation 4 (Para 18)

…of “best interests of the child” and the so-called right of a parent to move, discussed in cases such as AMS v AIF (1999) 199 CLR 160, and U v U (2002) 211 CLR 238. His Honour considered that a proposal to relocate should be treated as a fact, to be taken into account in determining on all of the evidence what is in…
AMS v AIF [1999] HCA 26
Citation 5 (Para 18)

…ween the paramountcy principle of “best interests of the child” and the so-called right of a parent to move, discussed in cases such as AMS v AIF (1999) 199 CLR 160, and U v U (2002) 211 CLR 238. His Honour considered that a proposal to relocate should be treated as a fact, to be taken into account in determining on…
C v S [1998] FamCA 66
Citation 6 (Para 19)

…The position is more acute on an interim application. The Full Court of the Family Court in Campbell and Spalding [1998] FamCA 66, said: “In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, su…

Legislation Cited

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61C, 61DA, 61DB, 64B, 6...
11 mentions (from Para 1)
Family Law (Shared Parental Responsibility) Act 2006 (Cth)
2 mentions (from Para 4)