BDA & PDA - [2006] FMCAfam 440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BDA & PDA

[2006] FMCAfam 440

FAMILY LAW – Children – relocation – proposal to remove two children within the State of New South Wales – parenting orders – contact orders – planned relocation of mother – place of residence of children when on parent wishes to relocate to another area within the same State – proposals of parents about residence of and contact with children – best interests of children paramount consideration.

Family Law Act 1975 (Cth), ss.60B, 65E, 68F

AMS v AIF; AIF v AMS [1999] HCA 26; (1999) 24 Fam LR 756; FLC 92-852
A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035
Paskandy & Paskandy (1999) 25 Fam LR 607; FLC 92-878
Martin & Matruglio (1999) 25 Fam LR 510; FLC 92-876
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755
U v U [2002] HCA 36; (2002) 29 Fam LR 74
W & R [2006] FamCA 25

Applicant:

D A B

Respondent:

D A P

File Number:

NCM 1023 of 2005

Judgment of:

Scarlett FM

Hearing dates:

8 & 9 February 2006

Date of Last Submission:

10 May 2006

Delivered at:

Newcastle

Delivered on:

30 June 2006

REPRESENTATION

Counsel for the Applicant:

Mr Bates

Solicitors for the Applicant:

Mr Levick

Counsel for the Respondent:

Rankin & Nathan

Solicitors for the Respondent:

Thomas Mitchell Solicitors

ORDERS

That the Respondent mother is restrained from relocating the residence of the children E R B born 7 August 1994 and A E B born 27 April 1998 to the K area prior to 1 January 2007.
That the said children live with the mother.
That the said children have contact with the Applicant father:
(a)While the mother and children reside in the N area:
(i)During school terms on each alternate weekend from after school on Friday to the commencement of school the following Monday commencing the first weekend of each school term in even numbered years and the second weekend of each school term in odd numbered years;
(ii)For the first half of all school holiday periods in even numbered years from 10.00 a.m. on the first day of the holiday period to 4.00 p.m. on the day midway through the holiday period;
(iii)For the second half of all school holiday periods in odd numbered years commencing at 10.00 a.m. on the day midway through the holiday period until 4.00 p.m. of the last day of the holiday period;
(iv)From 9.00 a.m. to 6.00 p.m. on Father’s Day in each year; and
(v)By telephone to the child E’s mobile telephone and the father is to initiate the call between 6.00 p.m. and 6.30 p.m. each week day.
(b)That the children’s contact with the father be suspended at 9.00 a.m. on Mother’s Day in each year.
(c)That for the purpose of implementing the contact referred to in Order 3(a)(i) above, the father is to collect the children from school at…

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 BDA & PDA

Details

AGLC: BDA & PDA [2006] FMCAfam 440
Case: [2006] FMCAfam 440
Decision Date: 30 June 2006

CaseChat Overview and Summary

The case, BDA & PDA, involved the parents of two children, E R B and A E B, who were born in 1994 and 1998 respectively. The mother sought to relocate from the N area to the K area, a move opposed by the father. The Family Court of Australia was tasked with determining the issue of relocation, as well as establishing a contact schedule between the children and their father. The primary concern was ensuring that the children's best interests were met in terms of both their residence and their contact with their father.

The court had to decide whether the mother could relocate with the children to the K area before a specified date and, if so, what contact arrangements would best serve the children's welfare. The father argued that the move would disrupt the children's established routines and relationships, particularly their contact with him. The mother, on the other hand, believed that the relocation was in the children's best interests due to her employment opportunities in the K area.

The court found that the children should remain with the mother but ruled that she must not relocate to the K area before 1 January 2007. The detailed contact arrangements between the children and the father were outlined to ensure that the children's relationship with their father would be maintained despite the relocation. The contact schedule was meticulously crafted to balance the children's need for stability with their need for regular interaction with their father. The court also specified the logistics of the children's travel between the N and K areas, including who would arrange and pay for flights and supervise the children during travel.

In conclusion, the court restrained the mother from relocating to the K area before 1 January 2007 and established a comprehensive contact arrangement between the children and their father. The mother was directed to remain in the N area until the specified date, after which detailed contact provisions were set out for both the N and K areas. The father was required to supervise the children during all contact periods and ensure they were not left unsupervised while he was working.

Orders

Orders of the court

That the Respondent mother is restrained from relocating the residence of the children E R B born 7 August 1994 and A E B born 27 April 1998 to the K area prior to 1 January 2007.

That the said children live with the mother.

That the said children have contact with the Applicant father:

(a) While the mother and children reside in the N area:

(i) During school terms on each alternate weekend from after school on Friday to the commencement of school the following Monday commencing the first weekend of each school term in even numbered years and the second weekend of each school term in odd numbered years;

(ii) For the first half of all school holiday periods in even numbered years from 10.00 a.m. on the first day of the holiday period to 4.00 p.m. on the day midway through the holiday period;

(iii) For the second half of all school holiday periods in odd numbered years commencing at 10.00 a.m. on the day midway through the holiday period until 4.00 p.m. of the last day of the holiday period;

(iv) From 9.00 a.m. to 6.00 p.m. on Father’s Day in each year; and

(v) By telephone to the child E’s mobile telephone and the father is to initiate the call between 6.00 p.m. and 6.30 p.m. each week day.

(b) That the children’s contact with the father be suspended at 9.00 a.m. on Mother’s Day in each year.

(c) That for the purpose of implementing the contact referred to in Order 3(a)(i) above, the father is to collect the children from school at the commencement of the contact period and return the children to school at the end of the contact period.

(d) That for the purpose of implementing the contact referred to in Orders 3(a)(ii), (iii) and (iv) above, the mother or her nominee is to deliver the children to the outside of the fathers’ residence at the commencement of contact periods and collect the children from outside the father’s residence at the end of each contact period, and the father must remain inside his residence during contact changeovers.

(e) That from and after the time when the children relocate with the mother to the K area:

(i) For one weekend of each school term by arrangement in writing between the parties and, failing agreement, the fifth weekend of each term;

(ii) For the first half of all school holiday periods in each even numbered year from the first day of the holiday period to the last day of the holiday period;

(iii) For the second half of all school holiday periods in each odd numbered year from the day midway through the holiday period to the last day of the holiday period; and

(iv) By telephone to E’s mobile telephone and the father is to initiate the call between 6.00 p.m. and 6.30 p.m. each week day.

(f) That the contact in Order 3(e)(i) above be implemented by the mother arranging and paying for the children’s return flights from C to N.

(g) That the contact in Orders 3(ii) and (iii) be implemented by the mother arranging and paying for the children’s return flights from C to N in the midyear and Christmas holiday periods and the father arranging and paying for the children’s flights in the Autumn and Spring school holidays.

(h) That at all times when the children travel by air between C and N for the purpose of contact the mother is to supervise the children’s embarkation and disembarkation at the C end of the flights and the father is to supervise the children’s embarkation and disembarkation at the N end of the flights.

(i) That the parent arranging the children’s flights give the other parent written details of the flight arrangements no less than seven (7) days prior to the commencement of the contact period.

(j) That the father must ensure that he is available to supervise the children during all contact periods.

(k) That the father is restrained from leaving the children without supervision whilst he is working.

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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