Burke and Burke

Case [2009] FMCAfam 984


FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURKE & BURKE [2009] FMCAfam 984
FAMILY – Children – relocation (interstate) – best interests of children.
Family Law Act 1975, Part VII, ss.60B (1)(a), (b), (2), (2)(a), (3), (3)(h), 60CA, 60CC (2)(a), 60CC (3), 60CC(3)(d)–(h), (j), (k), 60CC(4), 60CC(4A), 61DA, 65DAA, 65DAA (2)–(4)

A v A: Relocation Approach(2000) 26 Fam LR 382; (2000) FLC ¶93-035
AMS v AIF, AIF v AMS (1999) 199 CLR 160; (1999) 163 ALR 501; (1999) 73 ALJR 927;
B and B (NA27 of 2006)
Badcoe & Badcoe [2008] FMCAfam 1368
Bolitho and Cohen (2005) 33 Fam LR 471; (2005) FLC ¶93-224
Champness & Hanson [2009] FamCAFC 96
Christie & Balkin [2008] FMCAfam 665
Goode & Goode (2007) 36 Fam LR 422; (2006) FLC ¶93-286
F v F (2008) 38 Fam LR 52
Keach & Keach (2007) FLC ¶93-353
M v S (2007) 37 Fam LR 32
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Paskandy and Paskandy (1999) 154 FLR 437; (1999) 25 Fam LR 607; (1999) FLC ¶92-878
Payne & Payne [2001] Fam 473
Powell and Ptolemy (2005) 34 Fam LR 340; (2005) FLC ¶93-239
Rosa & Rosa [2009] FamCAFC 81
Sealey & Archer [2008] FamCAFC 142
SPS & PLS (2008) 217 FLR 164; (2008) 39 Fam LR 295; (2008) FLC ¶93-363
Taylor & Barker (2007) 214 FLR 433; (2007) 37 Fam LR 461; (2007) FLC 93-345; [2007] Fam CA 1246
U v U (2002) 211 CLR 238; (2002) 191 ALR 289; (2002) 76 ALJR 1416
Wiley & Wiley [2008] FamCAFC 153
Winter & Winter [2008] FamCAFC 159

P. Easteal & K. Harkins, “Are we there yet? An analysis of relocation judgments in light of changes to the Family Law Act,” (2008) 22 Australian Journal of Family Law 259-278
P. Parkinson, “The Realities of Relocation: Messages from Judicial Decisions,” (2008) 22 Australian Journal of Family Law 35-55
P. Parkinson, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation,” (2008) 36 Federal Law Review 145-171

P. Parkinson “Relocation: What We Know Now and Why it Matters,” Paper for Family Law Conference, Fiji (June 2009)

Macquarie Dictionary (Fourth Edition: 2005)
Shorter Oxford English Dictionary on Historical Principles (Fifth Edition: 2003)

Applicant: MR BURKE
Respondent: MS BURKE
File Number: CAC 1049 of 2008
Judgment of: Neville FM
Hearing dates: 29 & 30 June; 1 July 2009
Date of Last Submission: 1 July 2009
Delivered at: Canberra
Delivered on: 18 September 2009

REPRESENTATION

Counsel for the Applicant: Mr Nicholson
Solicitors for the Applicant: Commins Hendriks
Counsel for the Respondent: Mr Skerjl
Solicitors for the Respondent: Kell Moore Solicitors

ORDERS

  1. That all previous parenting orders be discharged.

  2. That the Father and the Mother have equal shared parental responsibility for the children, [X] born in 2003, [Y] born in 2005 and [Z] born in 2006 (“the children”).

  3. That the Father and the Mother consult and make a genuine effort to…

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AGLC
Burke and Burke [2009] FMCAfam 984
Case
[2009] FMCAfam 984
Decision Date

CaseChat Overview and Summary

The Burke and Burke case involved a dispute between the parents regarding the care and residence of their three children, [X], [Y] and [Z]. The matter was heard and determined in the Family Court of Australia. The primary focus of the litigation was to establish a parenting plan that would provide a stable and nurturing environment for the children, while also ensuring that both parents had a meaningful role in their upbringing.

The court was tasked with resolving several key legal issues. These included determining the allocation of parental responsibility between the parties, deciding on the primary residence of the children, and setting out a detailed schedule for the children's time with each parent. The court also had to consider the implications of any potential future relocation by one of the parents and the impact on the children's living arrangements.

The Family Court meticulously evaluated the evidence presented by both parties, including expert testimony and the children's best interests. The court concluded that equal shared parental responsibility was in the children's best interests, ensuring that both parents could make significant contributions to their upbringing. The court ordered that the children primarily reside with the Father in [L], New South Wales, but established a comprehensive schedule for the children's time with the Mother, including specific arrangements for school holidays and special occasions such as Christmas and birthdays. The detailed orders also included provisions for communication between the children and the non-resident parent, as well as obligations for the parents to cooperate and refrain from denigrating each other in front of the children.

The court's final orders not only addressed the immediate parenting arrangements but also included provisions to adapt to potential changes in the future, such as a possible relocation by the Mother to [L]. The detailed and specific nature of the orders aimed to provide clarity and certainty for both parents and the children, ensuring a stable and consistent environment as they grow and develop.

Orders

Orders of the court

1.

That all previous parenting orders be discharged.

2.

That the Father and the Mother have equal shared parental responsibility for the children, [X] born in 2003, [Y] born in 2005 and [Z] born in 2006 (“the children”).

3.

That the Father and the Mother consult and make a genuine effort to come to joint decisions in the event long-term issues arise in relation to the children, including but not limited to their:

(a) Health;

(b) Education;

(c) Religion; and/or

(d) Living arrangements.

4.

That the children reside with the Father in [L], New South Wales.

5.

That the children spend time with the Mother at all times as agreed between the parties, but failing agreement as follows:

(a) From 5.00 pm Friday until 8.00 am Monday on the last weekend of each alternate calendar month, in [L], commencing the first calendar month following these Orders;

(b) From 5.00 pm Friday until 8.00 am the following Monday on the last weekend of each alternate calendar month, in Melbourne, commencing the second calendar month following these Orders;

(c) For the first half of all New South Wales school term holidays in 2009 and each alternate year thereafter, commencing at 3.30 pm on the last day of school and concluding at 12.00 pm on the middle Saturday of the holiday break;

(d)

For the second half of all New South Wales school term holidays in 2010 and each alternate year thereafter, commencing at

12.00 pm on the middle Saturday of the holiday break and concluding at 12.00 pm on the following Saturday;

(e) For the first four weeks of the Christmas school holiday break in 2010 and each alternate year thereafter commencing at 3.30 pm on the last day of school for the year, and concluding at 12.00 pm on the 28th day thereafter; and

(f)

From 3.00 pm on Boxing Day in 2009 and each alternate year thereafter for a period of 28 days, concluding at 12.00 pm on

23 January in the following year.

(g) Should the wife be in [L] at any time during a New South Wales school term for one weekend per school term in [L] at times to be agreed between the parties, provided that the wife gives to the husband not less than two (2) weeks notice in writing of her intention to spend time with children pursuant to this Order.

6.

That with respect to the Christmas period, despite with whom the children are living with during the week of Christmas, unless otherwise agreed, they shall spend time with their Parents as follows:

(a) With the Father from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2009 and each alternate year thereafter;

(b) With the Mother from 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2009 and each alternate year thereafter;

(c) With the Father from 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2010 and each alternate year thereafter; and

(d) With the Mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2010 and each alternate year thereafter.

7.

That unless otherwise agreed between the parties, for the purpose of Orders 5 and 6, the Father is to facilitate the children spending time with the Mother by the Father delivering the children to the wife in [L] at the commencement of the relevant period, and the Mother is to deliver the children to the Father’s home in [L] at the conclusion of the relevant period.

8.

That the children communicate with the parent with whom they are not living three (3) times per week by telephone (or Skype) between the hours of 6.45 pm and 7.45 pm and the parent with whom they are not living initiate the call and the parent with whom they are living facilitate the Children communicating with other parent.

9.

That the Father and the Mother provide to the other and keep the other party informed of his or her current residential address and contact telephone number and advise of any change in relation to either within seven days of such change.

10.

That each party will not denigrate the other and will use their best endeavours to ensure that no other person denigrates the other party, their relations or members of the other party’s household, to the children or in the presence of the children.

11.

That the parties notify the other of the name, address and telephone number of any medical practitioner or any other professional that they take either of the children to, and by this Order, that medical practitioner or other professional is authorised to release information to the other party concerning either of the children’s health or welfare.

12.

That each party shall notify the other party of any medical emergency or medical condition concerning either of the children as soon as possible after its occurrence.

13.

That the parties shall authorise any school that either of the children attend to release such information concerning the children’s education or development, or school related events to the other party at the other party’s request and at the other party’s expense.

THAT ALTERNATIVELY IN THE EVENT THE MOTHER RESIDES IN [L], IT IS ORDERED:

14.

That Orders 4, 5 and 7 of these Orders be discharged.

15.

That from 2009 to 2011:

(a) The children live with the Mother; and

(b) The children spend time with the Father at all times as agreed between the parties, but failing agreement:

(i) For a period of 12 months following the date of these Orders:

A. From Thursday at 3.30 pm until Friday at 8.30 am in Week One and each alternate week thereafter; and

B. From Thursday at 3.30 pm until Monday at 8.30 am in Week Two and each alternate week thereafter.

(ii) For a period of 12 months commencing on the anniversary of these Orders:

A. From Wednesday at 3.30 pm until Friday at 8.30 am in Week One and each alternate week thereafter; and

B. From Wednesday at 3.30 pm until Monday at 8.30 am in Week Two and each alternate week thereafter.

16.

That commencing at the start of the New South Wales school year in 2012 the children live with the Father and the Mother on a week about basis as follows:

(a) From 5.00 pm on the Sunday immediately following the twelve month anniversary of these Orders until the following Sunday at 5.00 pm and for each alternate week thereafter the Children live with the Father;

(b) From 5.00 pm on the second Sunday immediately following the twelve month anniversary of these Orders until the following Sunday at 5.00 pm and for each alternate week thereafter the Children live with the Mother;

(c) Where a long weekend occurs with the Monday being a Public Holiday in the state of New South Wales, the changeover time will be 5.00 pm on the Monday in lieu of the Sunday.

17.

That should Father’s Day occur on a weekend where the children would otherwise be living with the Mother in accordance with these Orders, the children shall be returned to the Father by 5.00 pm on the Saturday immediately preceding Father’s Day.

18.

That should Mother’s Day occur on a weekend where the children would otherwise be living with the Father in accordance with these Orders, the children shall be returned to the Mother by 5.00 pm on the Saturday immediately preceding Mother’s Day.

19.

That with respect to each of the children’s birthdays, unless otherwise agreed:

(a) If the birthday occurs on a school day, the parent with whom the children are not living with during that week shall spend time with the children from 4.00 pm to 6.30 pm on that day.

(b) If the birthday occurs on a non-school day, the parent with whom the children are not living with during that week shall spend time with the children from 3.00 pm until 6.30 pm on that day.

20.

That with respect to the changeover of the children pursuant to these Orders, unless otherwise agreed, the Father shall collect the children from their school or day-care facility or the Mother’s residence at the commencement of his time with the children and the Mother shall collect the children from their school or day-care facility or the Father’s residence at the commencement of her time with the Children.

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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