FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARCLAY & BARCLAY | [2014] FCCA 87 |
| Catchwords: FAMILY LAW – Relocation – Darwin to Melbourne – parents of high quality – whether or not the father is likely to relocate too if the relocation is allowed. |
| Legislation: Family Law Act 1975 (Cth), Pt VII, ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA, 94AAA |
| Waterford & Waterford [2013] FamCA 33 Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MR BARCLAY |
| Respondent: | MS BARCLAY |
| File Number: | DNC 178 of 2013 |
| Judgment of: | Judge Harland |
| Hearing date: | 20 November 2013 |
| Date of Last Submission: | 18 December 2013 |
| Delivered at: | Darwin |
| Delivered on: | 22 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barry |
| Solicitors for the Applicant: | Cecil Black Family Lawyers |
| Counsel for the Respondent: | Ms Farmer |
| Solicitors for the Respondent: | Withnalls Lawyers |
ORDERS
That the parties have equal shared parental responsibility for the children [X] born [in] 2002 and [Y] born [in] 2004 (“the children”).
That the children be permitted to relocate to Melbourne with the mother at the end of the school term period or the last week of the school holiday period in which this judgment is delivered.
That the children live with the mother.
That the children spend time with the father during the Victorian Gazetted school holidays as follows:
1.1In odd numbered years for all of the term 1 school holidays;
1.2In each year for all of the midyear term 2 school holidays;
1.3In even numbered years for all of the term 3 school holidays;
1.4In even numbered years for the first half of the Christmas school holidays;
1.5In odd numbered years for the second half of the Christmas school holidays.
That the parties share equally in the costs of air travel for the children with the father to book and pay for the travel from the airport closest to the mother to the airport closest to the father and provide the mother with the itineraries and details not less than 14 days prior to the intended travel.
That the mother book and pay for the travel from the airport closest to the father to the airport closest to the mother and provide the father with the itineraries and details not less than 7 days prior to the intended travel.
That the children communicate with the father at all reasonable times.
That the parties inform the other in the event of any serious accident, injury or illness suffered by any of the child and all and any medical or other treatment for the child.
That each parent be entitled to obtain directly…
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- Barclay and Barclay [2014] FCCA 87
- Case
- [2014] FCCA 87
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CaseChat Overview and Summary
The primary legal issues before the court were whether to grant the mother's application for the children to relocate to Melbourne and, consequently, to determine the parenting orders that would govern the children's living arrangements and time with each parent, including shared parental responsibility and the specifics of the father's time with the children.
The court, by consent of the parties, made orders reflecting a shared parental responsibility for the children. The mother was granted permission to relocate with the children to Melbourne, and the children were ordered to live with her. The father was granted specific periods of time with the children during Victorian Gazetted school holidays, with detailed provisions for travel costs and communication. The orders also included provisions for the parents to share information regarding the children's education and health, and to keep each other informed of contact details. Further orders addressed potential future scenarios, including the father's ability to spend additional time with the children in Melbourne and a revised living arrangement should the father relocate to the same city.
Orders
Orders of the court
1.
That the parties have equal shared parental responsibility for the children [X] born [in] 2002 and [Y] born [in] 2004 (“the children”).
2.
That the children be permitted to relocate to Melbourne with the mother at the end of the school term period or the last week of the school holiday period in which this judgment is delivered.
3.
That the children live with the mother.
4.
That the children spend time with the father during the Victorian Gazetted school holidays as follows:
1.1 In odd numbered years for all of the term 1 school holidays;
1.2 In each year for all of the midyear term 2 school holidays;
1.3 In even numbered years for all of the term 3 school holidays;
1.4 In even numbered years for the first half of the Christmas school holidays;
1.5 In odd numbered years for the second half of the Christmas school holidays.
5.
That the parties share equally in the costs of air travel for the children with the father to book and pay for the travel from the airport closest to the mother to the airport closest to the father and provide the mother with the itineraries and details not less than 14 days prior to the intended travel.
6.
That the mother book and pay for the travel from the airport closest to the father to the airport closest to the mother and provide the father with the itineraries and details not less than 7 days prior to the intended travel.
7.
That the children communicate with the father at all reasonable times.
8.
That the parties inform the other in the event of any serious accident, injury or illness suffered by any of the child and all and any medical or other treatment for the child.
9.
That each parent be entitled to obtain directly from any school attended by the children, or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change.
10.
That the parents shall each advise and keep the other parent advised of their respective telephone numbers, being a landline number and also including a mobile telephone number and their respective residential addresses and each parent shall within 14 days of any change of either their telephone number or residential address, advise the other parent of that change.
11.
That in the event the father notifies the mother of his intention to travel to Melbourne, he be permitted to spend additional time with the children for up to 7 consecutive nights, provided the children at all times attend any schooling or extra curricula activities.
12.
That if the father moves to the same city as the mother and children, during school terms and school holidays the children shall live equally with each parent on a weekly basis with change-over to occur before school on Mondays.
13.
That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations of 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Notation
Orders (1), (4)-(13) are made by consent.
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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