Bryans & Franks-Bryans - [2007] FamCA 377

FAMILY COURT OF AUSTRALIA

BRYANS & FRANKS-BRYANS

[2007] FamCA 377

FAMILY LAW – CHILDREN - With whom a child lives - Relocation- Consideration of Family Law Amendment (Shared Parental Responsibility) Act 2006 and principles to be applied to relocation - Best interests of the children - Consideration of views expressed by the children - Children exposed to conflict between the parties and between the wife and the husband’s partner - Effect of relocation on the children who are well settled - Practical difficulty and expense of the children spending time with the non-relocating party given the age of the children and distance they would be required to travel - Impact of the wife’s mental health on her capacity to care for the children.

FAMILY LAW – CHILDREN - Parental responsibility - Presumption of equal shared parental responsibility.

Family Law Act 1975 (Cth)
Family Law (Shared Parental Responsibility) Act 2006

AMS v AIF : AIF v AMS (1999) FLC 92-858
A v A : RELOCATION APPROACH (2000) FLC 92-035
H v L (2000) FLC 93-036
U v U (2002) FLC 93-112
BOLITHO and COHEN (2005) FLC 93-224:

APPLICANT:

Mr Bryans

RESPONDENT:

Ms Franks-Bryans

FILE NUMBER:

ADF

1888

2004

DATE DELIVERED:

30 April 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

20 – 23 November 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGinn

SOLICITOR FOR THE APPLICANT:

Alderman Redman

COUNSEL FOR THE RESPONDENT:

Mr Pickhaver

SOLICITOR FOR THE RESPONDENT:

Jane Ekin-Smith

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Bryans and Franks-Bryans.

Orders

That the husband and the wife have the equal shared parental responsibility for the children of the marriage a daughter born in November 1995 and a son born in September 1999.
That SAVE AND EXCEPT during the Christmas school holiday period the said children live with the husband from the conclusion of school on Friday 11 May 2007 until the conclusion of school on the following Friday and during the same times in each alternate week thereafter PROVIDED THAT during all school holiday periods SAVE AND EXCEPT during the Christmas school holidays the handovers take place at 4:00pm on each Friday with the party with whom the said children have been living or his or her nominee delivering the said children to the residence of the other party.
That SAVE AND EXCEPT during the Christmas school holiday period the said children live with the wife from the conclusion of school on Friday 4 May 2007 until the conclusion of school on the following Friday and during the same times in each alternate week thereafter PROVIDED THAT during all school holiday periods SAVE AND EXCEPT during the Christmas school holidays the handovers take place at 4:00pm on each Friday with the party with whom the said children have been living or his or her nominee delivering the said children to the residence of the…

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 Bryans & Franks-Bryans

Details

AGLC: Bryans & Franks-Bryans [2007] FamCA 377
Case: [2007] FamCA 377
Decision Date: 30 April 2007

CaseChat Overview and Summary

The case of *Bryans & Franks-Bryans* concerned a dispute between parents regarding the relocation of a child. The court was required to determine whether to grant the mother's application to relocate with the child, considering the principles of the *Family Law Amendment (Shared Parental Responsibility) Act 2006*.

The central legal issues before the court were the best interests of the child, the presumption of equal shared parental responsibility, and the specific factors to be considered under Section 60CC of the *Family Law Act 1975* (Cth). These included the benefit of a meaningful relationship with both parents, the need to protect the child from harm, the child's views, the nature of the child's relationships, the parents' willingness to facilitate a relationship with the other parent, the likely effect of any change in circumstances, the practical difficulties and expense of maintaining contact, the capacity of each parent to provide for the child's needs, and any other relevant facts or circumstances. The court also had to consider the impact of exposure to conflict between the parents and the mother's mental health on her capacity to care for the child.

Strickland J applied the principles of Section 60CC, weighing the various considerations in determining the child's best interests. The court noted the importance of a meaningful relationship with both parents and the need to protect the child from exposure to conflict. The practical difficulties and expense of relocation, the child's well-settled status, and the mother's mental health were also significant factors in the court's assessment.

Orders

Orders of the court

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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

Under the provisions of Section 60CC, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case, that is:Primary considerations(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))Additional considerations(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;(b)the nature of the relationship of the child with:(i)each of the child’s parents; and(ii)other persons (including any grandparent or other relative of the child);(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i)either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f)the capacity of:(i)each of the child’s parents; and(ii)any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;(h)if the child is an Aboriginal child or a Torres Strait Islander child:(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and(ii)the likely impact any proposed parenting order under this Part will have on that right;(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;(j)any family violence involving the child or a member of the child’s family;(k)any family violence order that applies to the child or a member of the child’s family, if:(i)the order is a final order; or(ii)the making of the order was contested by a person;(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))