BJZ and KEM - [2007] FMCAfam 86

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BJZ & KEM

[2007] FMCAfam 86

FAMILY LAW – Relocation – mother of children aged 8 and 7 wishing to move with them from M in SA to N in Victoria – impact of new provisions of Part VII of the Family Law Act – distinction between consideration of application of section 92 of the Constitution and general considerations of freedom of movement of citizens – whether presumption of equal shared parental responsibility rebutted – consideration of bests interest of children – orders made effect of which is for children to live with mother in N.

Constitution of the Commonwealth of Australia, s.92
Family Law Act 1975, ss.60B, 60CC, 61C, 61DA, 64B, 64DAA

AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A: Relocation Approach (2000) FLC 93-035
U v U (2002) FLC 93-112
Bolitho & Cohen (2005) FLC 93-224
Goode & Goode [2006] FamCA1346
Hickson & Humphrey [2007] FMCAfam 27
Tiedeman & Offord [2006] FMCAfam 709

Applicant:

BJZ

Respondent:

KEM

File number:

ADM 3747 of 2005

Judgment of:

Lindsay FM

Hearing dates:

17, 18, 21, 22, 23 August 2006
& 21 September 2006

Date of last submission:

21 September 2006

Delivered at:

Adelaide

Delivered on:

22 February 2007

REPRESENTATION

Counsel for the Applicant:

Mr Verlato

Solicitors for the Applicant:

Downs Lawyer

Counsel for the Respondent:

Ms T Lewis

Solicitors for the Respondent:

Herman Bersee

Counsel for the Independent Children’s Representative:

Mr Pickhaver

Solicitors for the Independent Children’s Representative:

Nicola Lesley Atchison

ORDERS

That all previous parenting orders be and the same are hereby discharged.
That any injunction restraining the mother from changing the principal place of residence of either of the infant children JSZ and JPZ be and the same is hereby dissolved.
That the mother have sole parental responsibility for the said children.
That the said children live with the mother.
That the mother do all such things as may be reasonably required to facilitate the said children spending time with the father as follows:
(a)During school term on each fourth weekend from Friday evening until Sunday evening commencing 2 March 2007;
(b)For the entirety of the first and third term school holiday periods;
(c)For the second half of the 2007-2008 Christmas school holiday period and in each alternate year thereafter;
(d)For the first half of the 2008-2009 school holiday period and in each alternate year thereafter;
(e)For periods of time in Victoria being those periods of time specified in writing by the father upon giving the mother not less than fourteen (14) days notice of same being periods of time not exceeding 48 hours in length save with the consent of the mother and with such periods of time to be at intervals of not less than twenty one (21) days.
That the mother do all such things as may be reasonably required to facilitate the said children communicating with the father by telephone at intervals of not less than fourteen (14) days with the costs of such…

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 BJZ and KEM

Details

AGLC: BJZ and KEM [2007] FMCAfam 86
Case: [2007] FMCAfam 86
Decision Date: 22 February 2007

CaseChat Overview and Summary

In the matter of BJZ and KEM, the Family Court of Australia was tasked with determining parenting arrangements for the children JSZ and JPZ. The dispute centred around the allocation of parental responsibility and the establishment of a visitation schedule for the father, given the mother's objection to changing the children's principal place of residence. The court was required to consider the welfare and best interests of the children as the paramount concern, in accordance with the principles outlined in the Family Law Act.

The primary legal issues the court had to address included whether the existing parenting orders should be discharged and replaced with new ones, whether an injunction preventing the mother from relocating the children should be dissolved, and the formulation of a visitation schedule that balanced the children's need for stability with the father's right to spend time with them. Additionally, the court had to determine the allocation of parental responsibility and the specific measures needed to facilitate the father's visitation, including logistical arrangements and communication protocols.

The court determined that the best course of action was to discharge the previous parenting orders and dissolve the injunction against the mother changing the children's residence. It was held that the mother should have sole parental responsibility, with the children residing with her. The court then outlined a detailed visitation schedule for the father, ensuring that he could spend significant time with the children during school terms and holidays, with specific provisions for travel and communication. The court emphasised the importance of the mother facilitating the father's access to the children, including arranging transportation and bearing associated costs. The order for the appointment of the independent children's lawyer was discharged, and liberty to apply for modifications or security for costs was granted.

The court's final orders included the discharge of previous parenting orders and injunctions, the allocation of sole parental responsibility to the mother, and a detailed visitation schedule for the father. The mother was required to facilitate the father's access to the children and bear certain costs associated with travel and communication. The court also granted liberty to apply for modifications or security for costs if the mother failed to comply with the new orders. The appointment of the independent children's lawyer was discharged, and liberty to apply for consequential matters was preserved.

Orders

Orders of the court

That all previous parenting orders be and the same are hereby discharged.

That any injunction restraining the mother from changing the principal place of residence of either of the infant children JSZ and JPZ be and the same is hereby dissolved.

That the mother have sole parental responsibility for the said children.

That the said children live with the mother.

That the mother do all such things as may be reasonably required to facilitate the said children spending time with the father as follows:

(a) During school term on each fourth weekend from Friday evening until Sunday evening commencing 2 March 2007;

(b) For the entirety of the first and third term school holiday periods;

(d) For the first half of the 2008-2009 school holiday period and in each alternate year thereafter;

(e) For periods of time in Victoria being those periods of time specified in writing by the father upon giving the mother not less than fourteen (14) days notice of same being periods of time not exceeding 48 hours in length save with the consent of the mother and with such periods of time to be at intervals of not less than twenty one (21) days.

That the mother do all such things as may be reasonably required to facilitate the said children communicating with the father by telephone at intervals of not less than fourteen (14) days with the costs of such telephone communication to be borne by the mother.

That for the purposes of facilitating the father spending time with the children pursuant to para.5 (a), (b), (c) and (d) of these orders the mother shall arrange for the transportation of the children to Melbourne airport and their flight from hence to M airport at the commencement thereof and their flight from M to Melbourne airport and their collection there from at the conclusion thereof and the mother shall bear all costs in relation to same.

Liberty to the father to apply at short notice upon the filing of an affidavit for orders relating to the modification of the orders specified in paras.4 or 5 hereof in the event of the mother’s failure to comply with the provisions of these orders relating to the facilitation of the father spending time with the said children and for orders relating to the provision of security relating to the costs referred to in para.7 hereof.

That the order for the appointment of the independent children’s lawyer be discharged.

10.

Liberty to apply as to consequential matters.

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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