BEAUFORD & KEDDIE - [2021] FCCA 4

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAUFORD & KEDDIE

[2021] FCCA 4

Catchwords:
FAMILY LAW – Relocation – competing applications for final parenting arrangements in respect of child aged 4 – parties originally lived in Town B in South Australia – mother moved to Perth with her new partner and child remained in Town B with her father – mother seeks that child live with her and the child’s half-siblings in Western Australia and spend time with the father in school holidays – father seeks that the child remain in South Australia and spend time with the mother in school holidays – issues of relocation – presumption of equal shared parental responsibility – issues concerning the impact of a change in the child’s circumstances – section 60CC factors – best interests – costs in respect of earlier interim proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B,

65C, 65D, 65DAA, 65DAC, 65DAE, 117

Cases cited:

Adamson & Adamson (2014) FLC 93-622

AMS v AIF; AIF v AMS (1999) FLC 92-852

A v A: Relocation approach (2000) FLC 93,035

B v B: Family Law Reform Act 1995 (1997) FLC 92-755

B & B: Family Law Reform Act 1995 (1997) FLC 92-755

C & S [1998] FamCA 66

D and S V (2003) FLC 93-137

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Fox v Percy (2003) 214 CLR 118

Godfrey v Saunders 2008 FLR 287

Mazorski v Albright (2007) 37 Fam LR 518

MRR v GR (2010) 240 CLR 461

Russell & Russell & Anor [2009] FamCA 28

Sampson & Hartnett (No 10) (2007) FLC 93-350

Taylor & Barker [2007] FamCA 1246

U v U (2002) FLC 93,112

Applicant:

MR BEAUFORD

Respondent:

MS KEDDIE

File Number:

ADC 4506 of 2018

Judgment of:

Judge Brown

Hearing dates:

19, 20 & 21 February, 18, 19 & 20 August and 21 September 2020

Date of Last Submission:

21 September 2020

Delivered at:

Adelaide

Delivered on:

5 February 2021

REPRESENTATION

Counsel for the Applicant:

Mellor Olsson

Solicitors for the Applicant:

Mr Boehm

Counsel for the Respondent:

ASW Lawyers Pty Ltd

Solicitors for the Respondent:

Ms Horvat

ORDERS

The parties have equal shared parental responsibility for the child X (born in 2017 and hereinafter referred to as “X”).
X live with the father.
X spend time with the mother as agreed between the parties and failing agreement:
(a)During 2021 (and in 2022 prior to X commencing school in 2022):
(i)For up to four times per year for up to two weeks at a time at such times as the mother nominates in writing not less than twenty eight (28) days in advance and with X to spend at least two months (that is 62 days) with the father in between each such period of time spent with the mother.
(b)Upon X commencing school in 2022:
(i)For half of all short school holiday periods in the first week of each short school holidays from the first Saturday until…

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 BEAUFORD & KEDDIE

Details

AGLC: BEAUFORD & KEDDIE [2021] FCCA 4
Case: [2021] FCCA 4
Decision Date: 5 February 2021

CaseChat Overview and Summary

In the matter of *Beauford & Keddie*, Judge Brown of the Family Court of Australia considered competing applications for final parenting arrangements concerning a four-year-old child, X. The parents, who had previously lived in Town B, South Australia, were separated. The mother had relocated to Perth, Western Australia, with her new partner, while X remained in Town B with her father. The mother sought orders for X to live with her in Western Australia and spend time with the father during school holidays. Conversely, the father sought for X to remain in South Australia and spend time with the mother during school holidays. The central issues before the court involved relocation, the presumption of equal shared parental responsibility, the impact of changes in X's circumstances, and the factors outlined in section 60CC of the *Family Law Act 1975* (Cth) concerning X's best interests.

The court was required to determine the most appropriate final parenting orders, considering the relocation of the mother and the potential disruption to X's established life in South Australia. This involved assessing the practicalities and implications of X living in one state and spending significant time with the other parent in a different state, particularly in light of X's young age and the presumption of equal shared parental responsibility. The court also had to weigh the various factors under section 60CC of the *Family Law Act 1975* (Cth), including X's relationship with each parent, X's age, the capacity of each parent to provide care, and the potential impact of any orders on X's development and well-being.

Judge Brown applied the principles of equal shared parental responsibility and the paramount consideration of X's best interests. The court reasoned that while the mother had relocated, X's established life, schooling, and relationships in Town B were significant factors. The court found that it was in X's best interests for her to live with her father in South Australia, thereby maintaining her existing environment and schooling. The court also made detailed orders for X to spend time with the mother, carefully structuring these arrangements to facilitate ongoing contact while minimising disruption, including specific provisions for school holidays and travel between states. The court also issued injunctions restraining the parties from denigrating each other and from discussing the proceedings in X's presence.

Orders

Orders of the court

The parties have equal shared parental responsibility for the child X (born in 2017 and hereinafter referred to as “X”).

X live with the father.

X spend time with the mother as agreed between the parties and failing agreement:

(a) During 2021 (and in 2022 prior to X commencing school in 2022):

(i) For up to four times per year for up to two weeks at a time at such times as the mother nominates in writing not less than twenty eight (28) days in advance and with X to spend at least two months (that is 62 days) with the father in between each such period of time spent with the mother.

(b) Upon X commencing school in 2022:

(i) For half of all short school holiday periods in the first week of each short school holidays from the first Saturday until the middle Saturday;

(ii) For the first three weeks of the summer school holidays in 2022 and each alternate year thereafter and from the first Saturday until the fourth Saturday; and

(iii) For the second three weeks of the summer school holidays in 2023 and each alternate year thereafter from the fourth Saturday until the seventh Saturday.

Unless otherwise agreed between the parties, including any agreement that X travel as an unaccompanied minor when the rules permit it, all handovers take place with the mother or her agent to collect X from the father or his agent at the Perth airport at the beginning of each visit and the father or his agent to collect X from the mother or her agent at the Adelaide airport at the conclusion of each visit.

Each party be responsible for the cost of their own or their agent’s travel to collect/deliver X at handovers.

The party booking the flight for the child pay the initial costs of the flight, with the other party to reimburse them within twenty one (21) days of the booking being made.

Should the mother be visiting South Australia at any time upon her having given the father notice in advance of her doing so, the mother spend time with X at such times and at such places to be agreed between the parties in writing, on the basis that the mother advises the father of the name, address and contact details for all places of accommodation for herself and X within South Australia during 2021, and thereafter from 2022 on the further basis that unless otherwise agreed in writing in advance, the mother is required to ensure X’s attendance at school in South Australia during such period.

Should either party wish to travel with X during any period of care of her from outside his or her (as the case may be) “home state” that party shall give the other party at least four (4) weeks written notice thereof, including as to applicable details for flights, accommodation and contact details.

Unless otherwise agreed in writing between the parties, X communicate with the party whose care she is not in via Skype/telephone twice each week on Wednesdays and Sundays at 4.30pm local time for X, with the party whom X is not being cared for at the time to initiate the Skype/telephone call.

10.

X be enrolled to attend at Town B Primary School in 2022 for the entirety of her primary education unless the parties agree otherwise.

11.

The parties do all such things and sign all such forms necessary to enrol X in a secondary school to be agreed between them in writing.

12.

Each party keeps the other informed of their current residential address, mobile and landline telephone numbers (if applicable) and any available email addresses and advise the other party of any change thereto within seven (7) days of such change.

13.

The mother and father do all things reasonable to ensure that the other is kept informed in a timely manner of any issues relating to the wellbeing, health, education and care of X whilst with the respective party.

14.

The mother and father inform the other forthwith by telephone call to the other’s mobile telephone in the event of any accident, serious injury or serious illness suffered by X and of all and any medical or other treatment received by X. In the event the other party does not answer the call then the informing party shall message the other party via the communication app/mode used by the parties.

15.

The mother and father provide to the other names and addresses of all medical, dental and licensed health practitioners consulted by X.

16.

The mother and father authorise the other to receive any and all information from any treating doctor, licensed health practitioner and dentist, including access to reports, whom X may attend from time to time.

17.

Both parties be at liberty to attend all of the children’s sporting and extra-curricular activities and all school functions routinely attended by parents in respect of the child, obtain copies of the child’s school reports and school photographs and any other school related information in respect of the child.

18.

Each of the parties, their servants and agents be hereby restrained and an injunction issue restraining them from:

(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and

(b) Discussing these proceedings or the contents of any documents filed in these proceedings with or in the presence or hearing of X, and from permitting any other person to do so.

19.

All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

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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