BEAUMONT & RAWLINGS - [2012] FMCAfam 48

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BEAUMONT & RAWLINGS

[2012] FMCAfam 48

FAMILY LAW – Children – parenting orders – relocation – where mother seeks to relocate the child’s residence to the United Kingdom – boy aged 2 years and 6 months.

FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – whether equal time with each is in the child’s best interests – whether equal time is reasonably practicable – substantial and significant time.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CB, 60CC, 61DA, 65DAA

M v S [2006] FamCA 1408; (2007) FLC 93-313; (2008) 37 Fam LR 32
Mallahan & Mallahan [2010] FamCA 631
McCall v Clark [2009] FamCAFC 92; (2009) 42 Fam LR 483; FLC 93-405
Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343
MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424

Applicant:

MS BEAUMONT

Respondent:

MR RAWLINGS

File Number:

SYC 2950 of 2010

Judgment of:

Scarlett FM

Hearing dates:

15 and 16 September, 29 November 2011

Date of Last Submission:

29 November 2011

Delivered at:

Sydney

Delivered on:

19 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr Auld

Solicitors for the Applicant:

Tiyce & Partners Lawyers

Counsel for the Respondent:

Mr Jackson

Solicitors for the Respondent:

Adams & Partners Lawyers

ORDERS

All earlier previous parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child of the parties [X] born [in] 2009.
The child [X] is to live with the Applicant Mother.
The Mother is restrained from changing the residence of the child [X] from Australia to the United Kingdom until after [date omitted] 2012.
The child [X] is to spend time with the Father as follows:
(a)UNTIL [date omitted] 2012:
(i)each Saturday from 9:00am until 5:00pm;
(ii)from 10:00am until 2:00pm on Christmas Day 2011;
(iii)from 10:00am until 2:00pm on the child’s birthday; and
(iv)at such other times as the parties shall agree until the child leaves Australia.
(b)FROM [date omitted] 2012 IN THE UNITED KINGDOM:
(i)After six (6) months of the child’s taking up residence in the United Kingdom the Father may visit him and spend from 9:00am to 5:00pm with the child each day during his visit for a period of up to two (2) weeks and the Mother is to be present with the child during the first day of the Father’s visit;
(ii)For the purpose of Order 5(b)(i) above the Mother is to be responsible for payment of the Father’s economy class return airfare from Australia to the United Kingdom and return and for the costs of the Father’s basic accommodation in the United Kingdom for the initial period of two (2) weeks; and
(iii)The Father is to spend time with the child for subsequent periods of two (2) weeks from 9:00am until 5:00pm each day or such further times as the parties shall agree and for this purpose the Father…

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 BEAUMONT & RAWLINGS

Details

AGLC: BEAUMONT & RAWLINGS [2012] FMCAfam 48
Case: [2012] FMCAfam 48
Decision Date: 19 January 2012

CaseChat Overview and Summary

The case of Beaumont & Rawlings involved a dispute between the parents of a child, [X], regarding the relocation of the child's residence to the United Kingdom. The primary concern was the best interests of the child, who was aged 2 years and 6 months at the time of the decision. The Family Court was tasked with determining the appropriate parenting orders and the feasibility of equal shared parental responsibility.

The court had to decide on several key issues, including whether the relocation of the child to the United Kingdom would be in the child's best interests and if it was reasonably practicable for the child to spend substantial and significant time with both parents. Additionally, the court had to consider the implications of equal shared parental responsibility on the child's welfare, including the logistics of maintaining a relationship between the child and the non-relocating parent.

In its reasoning, the court found that the best interests of the child would be served by allowing the child to remain in Australia until a specified date in 2012. The court concluded that equal shared parental responsibility was appropriate and established detailed arrangements for the child to spend time with both parents. These arrangements included regular visits by the father to Australia and the mother travelling to the United Kingdom to facilitate the father's time with the child. The court also imposed specific conditions to ensure the safety and well-being of the child, including drug testing and supervised visits where necessary.

The final orders of the court mandated equal shared parental responsibility between the mother and father, required the mother to remain in Australia until a specified date, and outlined detailed arrangements for the child to spend time with both parents. The orders also included provisions for communication between the child and the father, as well as measures to protect the child's welfare during medical emergencies and at school.

Orders

Orders of the court

All earlier previous parenting Orders are discharged.

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child of the parties [X] born [in] 2009.

The child [X] is to live with the Applicant Mother.

The Mother is restrained from changing the residence of the child [X] from Australia to the United Kingdom until after [date omitted] 2012.

The child [X] is to spend time with the Father as follows:

(a) UNTIL [date omitted] 2012:

(i) each Saturday from 9:00am until 5:00pm;

(ii) from 10:00am until 2:00pm on Christmas Day 2011;

(iii) from 10:00am until 2:00pm on the child’s birthday; and

(iv) at such other times as the parties shall agree until the child leaves Australia.

(b) FROM [date omitted] 2012 IN THE UNITED KINGDOM:

(i) After six (6) months of the child’s taking up residence in the United Kingdom the Father may visit him and spend from 9:00am to 5:00pm with the child each day during his visit for a period of up to two (2) weeks and the Mother is to be present with the child during the first day of the Father’s visit;

(ii) For the purpose of Order 5(b)(i) above the Mother is to be responsible for payment of the Father’s economy class return airfare from Australia to the United Kingdom and return and for the costs of the Father’s basic accommodation in the United Kingdom for the initial period of two (2) weeks; and

(iii) The Father is to spend time with the child for subsequent periods of two (2) weeks from 9:00am until 5:00pm each day or such further times as the parties shall agree and for this purpose the Father is to be responsible for payment of his own airfares and the costs of his accommodation in the United Kingdom for all subsequent visits after the visit referred to in Order 5(b)(i) above.

(i) The Mother is to travel to Australia with the child for two (2) weeks during the year 2013 and each year thereafter for the purpose of the Father spending time with the child [X] in Australia from 9:00am to 5:00pm each day or for such further times as the parties shall agree and the Mother is to be present with the child for the first day of each period;

(ii) The Mother is to give the Father no less than six (6) weeks notice of the dates when she will arrive in Australia and return to the United Kingdom for the period of time provided by Order 5(c)(i) above.

For the purpose of changeover in Order 5(a) the Father is to collect the child from the Mother’s residence and return the child to the Mother’s residence.

The Father must undertake urinalysis according to the Australian/NZ standard for supervised collection of samples for the purpose of establishing his use of illicit drugs if any and must provide each result to the Mother by email prior to his leaving Australia for the United Kingdom or the Mother’s leaving the United Kingdom for Australia as provided by Order 5 above and in the event that the Father is unable to establish a negative result for his sample then the time that the Father spends with the child immediately following the result is to be supervised by the Mother.

The Father and the Mother must provide an itinerary of their travel between Australia and the United Kingdom no less than fourteen (14) days prior to the proposed date of travel.

The Father is permitted to communicate with the child by telephone:

(a) on three occasions in each week before the hour of 7:00pm;

(b) on the child’s birthday;

(d) on Father’s Day; and

(e) on Christmas Day in each year.

10.

The Father is permitted to communicate with the child by email on a liberal basis once the child has learned to read.

11.

The Father is permitted to communicate with the child by Skype cam on no less than three (3) occasions per week at all reasonable hours.

12.

Each party must provide to the other details of:

(a) their current residential address;

(b) their current landline and mobile telephone numbers; and

13.

Neither party is to denigrate or criticise the other party in the presence or hearing of the child [X] or permit any third person to do so.

14.

In the event that the child suffers any medical emergency requiring medical or hospital treatment while spending time or living with the other parent:

(a) the parent in whose care the child happens to be at that time must notify the other parent as soon as practicable;

(b) the parent in whose care the child happens to be at that time must notify the other parent of details of any treating medical practitioner and any hospital where the child is being treated as soon as practicable and authorise the medical practitioner or hospital to provide to the other parent details of the child’s condition and treatment.

15.

Once the child commences school the Mother must:

(a) notify the Father of the name and address of the school; and

(b) authorise the school to provide to the Father at his expense copies of all school reports, newsletters, advice about school photographs and other information normally provided to parents of children attending that school.

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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