BOYLE & ZAHUR - [2017] FamCA 295

FAMILY COURT OF AUSTRALIA

BOYLE & ZAHUR

[2017] FamCA 295

FAMILY LAW – CHILDREN- Application for international relocation - Where application for relocation is predicated on the parties cooperating - Where on the evidence the scope for cooperation is minimal - Where international relocation is found likely to be detrimental to a meaningful relationship with both parents - Where application for relocation is dismissed.

Family Law Act 1975 (Cth) – ss 60CC, 65DAA

Taylor & Barker (2007) FLC ¶93-345

APPLICANT:

Ms Boyle

RESPONDENT:

Mr Zahur

INDEPENDENT CHILDREN’S LAWYER:

Claire Naidu & Co

FILE NUMBER:

CAC

429

2014

DATE DELIVERED:

11 May 2017

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

21 March - 23 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Macpherson

SOLICITOR FOR THE APPLICANT:

Gabbedy Milson Lee

SOLICITOR FOR THE RESPONDENT:

Mr Zahur self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Naidu

Orders

The mother, Ms Boyle, born … 1973, (the mother) and the father, Mr Zahur, born … 1969, (the father) have equal shared parental responsibility for the children, B, born … 2005, and C, born … 2006, (the children).
The children live with the mother.
The children spend time with the father as follows:
(a)Every alternate weekend from after school or 3pm on Friday until 5pm on Sunday;
(b)Every Wednesday from after school or 3pm until the commencement of school on Thursday; and
(c)At any other times as agreed between the parties.
Unless otherwise agreed, for the ACT school term holidays the children will spend time with the mother and the father as follows:
(a) For the Term 1 and Term 2 school holiday periods:
(i)For the first half with the mother in even numbered years;
(ii)For the second half with the father in even numbered years;
(iii)For the first half with the father in odd numbered years; and
(iv)For the second half with the mother in odd numbered years.
(b) For the Term 3 school holiday period:
(i)For the first half with the mother; and
(ii)For the second half with the father.
Unless otherwise agreed, for the Christmas school holiday period the children will spend time with the mother and the father as follows:
(a)From the conclusion of school on the last day of Term 4 until 3pm on Christmas Day, 25 December, with the mother;
(b)From 3pm on Christmas Day, 25 December, until 3pm on 16 January with the father, save for the operation of Order 6 herein; and
(c)From 3pm on 16 January until the commencement of school in Term 1 with the mother.
Unless otherwise agreed, the children will spend time with the mother from 3pm on New Year’s Eve until 10am on New Year’s Day in even numbered years, commencing on 31 December 2018.
Unless otherwise agreed, for the Easter long weekend the children will spend time with the mother and the father every year as follows:
(a)From 9am on Good Friday until 10am Easter Saturday with the mother;
(b)From 10am Easter Saturday until 9am…

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

Case: [2017] FamCA 295
Decision Date: 11 May 2017

CaseChat Overview and Summary

This matter concerned an application by the mother, Ms Boyle, for international relocation of the parties' two children, B and C, who live with her. The father, Mr Zahur, opposed the application. The court was required to determine whether the proposed international relocation was in the best interests of the children, particularly in light of the parties' capacity for cooperation regarding the children's future arrangements.

The central legal issue before the court was whether to grant the mother's application for international relocation of the children. This required the court to assess the potential impact of such a move on the children's meaningful relationship with both parents, considering the evidence presented regarding the parties' ability to cooperate and facilitate ongoing contact.

Gill J found that the proposed international relocation was likely to be detrimental to the children's meaningful relationship with both parents. The court noted that the application was predicated on the parties cooperating, but the evidence indicated that the scope for cooperation was minimal. Consequently, the application for international relocation was dismissed. The court then made detailed orders regarding the children's living arrangements, time spent with each parent, school holidays, special occasions, and communication regarding the children's health and education, reflecting a shared parental responsibility.

Orders

Orders of the court

The mother, Ms Boyle, born … 1973, (the mother) and the father, Mr Zahur, born … 1969, (the father) have equal shared parental responsibility for the children, B, born … 2005, and C, born … 2006, (the children).

The children live with the mother.

The children spend time with the father as follows:

(a) Every alternate weekend from after school or 3pm on Friday until 5pm on Sunday;

(b) Every Wednesday from after school or 3pm until the commencement of school on Thursday; and

Unless otherwise agreed, for the ACT school term holidays the children will spend time with the mother and the father as follows:

(a) For the Term 1 and Term 2 school holiday periods:

(i) For the first half with the mother in even numbered years;

(ii) For the second half with the father in even numbered years;

(iii) For the first half with the father in odd numbered years; and

(iv) For the second half with the mother in odd numbered years.

(b) For the Term 3 school holiday period:

(i) For the first half with the mother; and

(ii) For the second half with the father.

Unless otherwise agreed, for the Christmas school holiday period the children will spend time with the mother and the father as follows:

(a) From the conclusion of school on the last day of Term 4 until 3pm on Christmas Day, 25 December, with the mother;

(b) From 3pm on Christmas Day, 25 December, until 3pm on 16 January with the father, save for the operation of Order 6 herein; and

Unless otherwise agreed, the children will spend time with the mother from 3pm on New Year’s Eve until 10am on New Year’s Day in even numbered years, commencing on 31 December 2018.

Unless otherwise agreed, for the Easter long weekend the children will spend time with the mother and the father every year as follows:

(a) From 9am on Good Friday until 10am Easter Saturday with the mother;

(b) From 10am Easter Saturday until 9am Easter Sunday with the father;

(d) From 10am Easter Monday until 5pm Easter Monday with the father.

Unless otherwise agreed, the children will spend time with the father on the following special occasions:

(a) If a religious holy day falls on a school day, from 3pm until 9pm;

(b) If a religious holy day falls on a weekend, from 3pm Friday until 5pm Sunday; and

For Father’s Day the children will spend time with the father from 10am until 5pm, if not already spending time with the father.

10.

For Mother’s Day the children will spend time with the mother from 10am until 5pm, if not already spending time with the mother.

11.

For the children’s birthdays, the parent with whom the children are spending time with will make the children available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parties, but failing agreement, from 4pm until 6pm.

12.

Unless otherwise agreed, for the Father’s birthday the children will spend time with the father:

(a) From 3pm until 6pm if the father’s birthday falls on a school day; and

(b) From 10am until 5pm if the father’s birthday falls on a weekend or holiday

if not already spending time with the father.

13.

Unless otherwise agreed, for the mother’s birthday the children will spend time with the mother:

(a) From 3pm until 6pm if the mother’s birthday falls on a school day; and

(b) From 10am until 5pm if the mother’s birthday falls on a weekend or holiday

if not already spending time with the mother.

14.

Unless otherwise agreed, or unless the collection or drop off coincides with school time, the father will collect the children from the mother’s residence at the commencement of his time with the children, and the mother will collect the children from the father’s residence at the conclusion of his time with the children.

15.

The parents are permitted to attend any school attended by the children and to attend any school event occasion which parents are invited to.

16.

The parents will advise each other as soon as possible by the best available means in the event of the following occurring:

(a) Either child being injured or falling serious ill;

(b) Either child requiring urgent medical treatment by a doctor or ambulance crew; or

17.

The parents are permitted to attend any special medical appointments for the children and the parents will advise each other of any such appointments not less than three days prior to any such appointment.

18.

The parents are at liberty to obtain all medical records and to consult with the children’s medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.

19.

The parents will not denigrate each other or the other parent’s family in the presence of the children nor allow another person to do so.

BY CONSENT IT IS ORDERED THAT

20.

The mother is permitted to remove the children, B, born … 2005, and C, born … 2006, from the Commonwealth of Australia on 12 May 2017 for a period of six weeks provided that she returns the children to Australia by the end of that six week period.

21.

To facilitate the operation of the above order the time that the father spends with the children is suspended for the period that they are removed from the Commonwealth of Australia.

22.

The mother is permitted to remove the children B, born … 2005, and C, born … 2006 from the Commonwealth of Australia each calendar year on up to two occasions for a period of up to six weeks in aggregate provided that on each occasion she returns the children to Australia at the end of the period and, unless otherwise agreed, that the periods occur within the children’s school holidays.

23.

To facilitate the operation of the above order that the time that the father spends with the children is suspended for the period that they are removed from the Commonwealth of Australia.

IT IS FURTHER ORDERED THAT

24.

The Application for Costs filed by the mother on 10 May 2017 is adjourned to 2:15pm on 18 August 2017.

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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