BAXTER & BAXTER - [2016] FamCA 572

FAMILY COURT OF AUSTRALIA

BAXTER & BAXTER

[2016] FamCA 572

FAMILY LAW – CHILDREN – Best Interests – Where the mother sought orders enabling her to relocate to Ireland with the children – Where it was common ground the children will continue to live with the mother – Where the children have meaningful relationships with both parents – Where the children are not in need of any protection against the risk of physical or psychological harm through their exposure to family violence committed by the father – Where the mother is not exposed to an unacceptable risk of family violence – Where the mother’s parenting capacity would deteriorate to the detriment of the children if forced to maintain her residence with the children in Australia – Where the evidence does not justify restraint on the mother’s relocation with the children to Ireland, provided she obtains advance recognition of the orders in Ireland and financially empowers the father to travel there to visit them – Where as a condition precedent to the mother’s removal of the children from Australia, she must obtain from a court of competent jurisdiction in Ireland a declaration that the Australian orders are registered and enforceable in Ireland and pay a stipulated sum to the father, in default of which she is restrained from moving the children’s residence more than 500 kilometres away from where they currently live – Where the children will spend time with the father under differing regimes, depending upon the proximity of the parties’ homes

FAMILY LAW – CHILDREN – Parental Responsibility – Where it is not in the children’s best interests for the parties to have equal shared parental responsibility – Where the mother should be conferred with exclusion parental responsibility for the children

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996, Articles 24, 26

Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 67ZC, 68B, 70M, 70N, 111CA
Family Law Amendment (Child Protection Convention) Regulations 2003 (Cth), reg 10 and Schedule 1
Family Law Regulations 1984 (Cth), regs 14, 24 and Schedule 1A
The Protection of Children (Hague Convention) Act 2000 (Ireland)

AMS v AIF (1999) 199 CLR 160
Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175
Cales & Cales (2010) FLC 93-459
Cape & Cape (2013) FLC 93-549
Hepburn & Noble (2010) FLC 93-438
Kuhl v Zurich Financial Services (2011) 243 CLR 361
Malcolm v Monroe (2011) FLC 93-460
McCall v Clark (2009) FLC 93-405
Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517
Sampson v Hartnett (No.10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Zanda & Zanda [2014] FamCAFC 173

APPLICANT:

Mr Baxter

RESPONDENT:

Ms Baxter

INDEPENDENT CHILDREN’S LAWYER:

Ms Harper, Harpers Legal

FILE NUMBER:

NCC

2266

2014

DATE DELIVERED:

7 March 2016

PLACE…

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.

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Details

AGLC: BAXTER & BAXTER [2016] FamCA 572
Case: [2016] FamCA 572
Decision Date: 7 March 2016

CaseChat Overview and Summary

The case involved the mother seeking orders to relocate with the two children to Ireland. It was agreed that the children would continue to live with the mother and had meaningful relationships with both parents. The court found that the children were not at risk of harm from family violence by the father, nor was the mother exposed to an unacceptable risk of family violence. The court considered that the mother's parenting capacity would suffer if she were forced to remain in Australia with the children.

The primary legal issues before the court were whether the mother should be permitted to relocate the children to Ireland and how parental responsibility should be allocated between the parents. The court was required to determine what arrangements would be in the best interests of the children, considering their relationships with both parents and the potential impact of relocation on those relationships and the mother's well-being.

The court reasoned that the evidence did not justify restraining the mother's relocation to Ireland, provided certain conditions were met. These conditions included obtaining advance recognition of the Australian orders in Ireland and financially empowering the father to travel for visits. The court determined that it was not in the children's best interests for the parents to have equal shared parental responsibility and instead conferred sole parental responsibility on the mother.

The final orders reflected these determinations. The mother was granted sole parental responsibility and the children were to live with her. However, her ability to relocate the children to Ireland was contingent upon her obtaining a declaration of registration and enforceability of the Australian orders in Ireland and depositing a sum of money for the father's travel. In default of these conditions, the mother was restrained from moving the children more than 500 kilometres from their current location. The orders also detailed specific arrangements for the children to spend time with the father, varying according to the distance between the parents' residences, and included provisions for communication and other protective measures.

Orders

Orders of the court

All former orders relating to the following children (“the children”) are discharged:

1.1 B, born … 2011;

1.2 C, born … 2012.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

Subject to the mother:

4.1 Serving on the father and Independent Children’s Lawyer documentary proof that she has:

4.1.1 Requested a decision from a court of competent jurisdiction in Ireland about recognition of these orders in Ireland pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (“the Child Protection Convention”);

4.1.2 Obtained from a court of competent jurisdiction in Ireland a declaration of registration and enforceability of these orders in Ireland pursuant to Article 26 of the Child Protection Convention; and

4.1.3 Deposited a lump sum of AUD$20,000 into a banking account nominated by the father in writing; and

4.2 Filing in this Court an affidavit verifying her compliance with the conditions set out within Order 4.1;

then the mother is not subject to any restraint concerning the location of the children’s residence and the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

4.3 Whilst ever the father lives within 50 kilometres of the mother and children:

4.3.1 During school terms:

(a) Each alternate weekend from 4.00 pm on Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term;

(b) Each week on Wednesday from 4.00 pm until 6.00 pm; and

4.3.2 For the second half of each school holiday period.

4.4 Whilst ever the father lives more than 50 kilometres from, but within 500 kilometres of, the mother and children:

4.4.1 During school terms, each alternate weekend from 4.00 pm Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term; and

4.4.2 For the second half of each school holiday period.

4.5 Whilst ever the father lives more than 500 kilometres from the mother and children:

4.5.1 Each year, from 9.00 am on 14 July until 6.00 pm on 14 August.

In default of the mother’s compliance with the conditions set out within Orders 4.1 and 4.2 hereof, the mother is restrained from moving the children’s residence to a place beyond a radius of 500 kilometres from the Post Office at D Town, NSW, Australia and the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

5.1 Whilst ever the father lives within 50 kilometres of the mother and children:

5.1.1 During school terms:

(c) Each alternate weekend from 4.00 pm on Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term;

(d) Each week on Wednesday from 4.00 pm until 6.00 pm; and

5.1.2 For the second half of each school holiday period.

5.2 Whilst ever the father lives more than 50 kilometres from, but within 500 kilometres of, the mother and children:

5.2.1 During school terms, each alternate weekend from 4.00 pm Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term; and

5.2.2 For the second half of each school holiday period.

For the purpose of implementation of Orders 4.3, 4.4, 5.1, and 5.2 hereof:

6.1 The school holiday periods are deemed to commence on the first day following the last day of school term, deemed to end at 6.00 pm on the last day preceding the day upon which the children are due to return to school, and the mid-point is noon on the day halfway between those first and last days.

6.2 The mother shall deliver the children to the father at the place nominated by the father in writing at the commencement of the time to be spent by the children with the father; and

6.3 The father shall deliver the children to the mother at the place nominated by the mother in writing at the conclusion of the time spent by the children with the father.

For the purpose of implementing Order 4.5 hereof, the father shall collect the children from the mother at the place nominated by the mother in writing at the commencement of the time to be spent by the children with him and he shall return the children to her at the same place at the conclusion of the time spent by the children with him.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by “Skype” internet communication program (or telephone if Skype is unavailable) with:

8.1 The father, each Monday, each Thursday, on the children’s birthdays, on Father’s Day, and on Christmas Day, when the children are living with the mother:

8.1.1 In Australia, at 6.00 pm (Sydney time), and

8.1.2 In Ireland, at 6.00 pm (City E time), and

for that purpose the father shall contact the children on the telephone number or internet connection provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number or connection at that time;

8.2 The mother, each Saturday and Wednesday when the children are spending time with the father:

8.2.1 In Australia, at 6.00 pm (Sydney time), and

8.2.2 In Ireland, at 6.00 pm (City E time), and

for that purpose the mother shall contact the children on the telephone number or internet connection provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number or connection at that time.

The father is restrained from consuming alcohol during any period in which the children spend time with him and also during the period of 12 hours immediately preceding such time.

10.

Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

11.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

12.

The mother shall authorise and request the principal of any school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.

13.

The mother shall notify the father of any medical emergency, illness or injury suffered by the children whilst in her care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.

14.

Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address, mobile telephone number, and email address.

15.

The parties and Independent Children’s Lawyer are at liberty to furnish a copy of these orders to:

15.1 The Australian Federal Police and any competent authority or officer empowered under the Australian Passports Act 2005 (Cth);

15.2 Irish legal representatives and courts for the purpose of recognition, registration and enforcement under The Protection of Children (Hague Convention) Act 2000 (Ireland); and

15.3 The principal of any school attended by the children.

16.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

17.

The Independent Children’s Lawyer is discharged upon the latter of:

17.1 The expiration of any applicable appeal period; or

17.2 The mother’s provision to the Independent Children’s Lawyer of documentary proof pursuant to Order 4.1 hereof.

18.

Costs are reserved for 28 days.

19.

Any and all outstanding applications are dismissed.

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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