C and N - [2003] FMCAfam 466

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & N

[2003] FMCAfam 466

CHILDREN – Whether husband be permitted to take the children to I to visit family – age of children – medical facilities in I – health of grandmother – not with primary carer for period of absence .

Family Law Act 1975, s.60B, s.65E, s.68F(2)

Line & Line (1997) FLC 92 – 729

Applicant:

F J C

Respondent:

R A N

File No:

MLM 4627 of 2003

Delivered on:

2 September 2003

Delivered at:

Melbourne

Hearing Date:

2 September 2003

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Ms A O'Connell

Solicitors for the Applicant:

T J Mulvany & Co

Counsel for the Respondent:

Mr N M Eidelson

Solicitors for the Respondent:

Goddard Elliott

ORDERS

That the Husband be permitted to take the children KJSJC born 14 September 1998 and DGAC born 19 M 2001 out of the Commonwealth of Australia to M, I leaving Australia on 16 December 2003 and returning on 8 January 2004.
That the Wife deliver the passport for the child K to the Husband not later than 1 December 2003 and the Husband return the said passport to the Wife upon the said child’s return to Australia.
That the Wife forthwith sign all documents and give all consents to enable the child D to obtain a passport and I travel visa all at the expense of the Husband and on receipt the passport be delivered to the Wife and the Wife deliver the passport to the Husband not later than 1 December 2003 and the Husband return the said passport to the Wife upon the said child’s D return to Australia.
That the Wife forthwith provide the Husband with a photocopy of the child’s K’s passport and I travel visa and the same for the child D’s as soon as the passport is obtained.

(4A)That in order for the Husband to be able to obtain an air ticket for the said children the Wife deliver the passports of the children to the Husband at a time requested in writing not less than 7 days prior by the Husband and he return them not less than 48 hours thereafter.

That the Husband by 1 December 2003 pay the sum of $72,000.00 into the trust account of the Husband’s solicitor, to be held in trust on the following terms:
(a)to repay the amount to the Husband upon the children returning to Australia on or before 15 January 2004;
(b)in the event that the children are not returned to Australia by
15 January 2004 to be paid to the Wife.
That by 1 December 2003 the Husband provide in writing to the Wife:
(a)detailed travel itinerary including flight numbers and times;
(b)a telephone number for contact with the children whilst in I.
That the Wife at the expense of the Husband ensure that the children have all vaccinations as recommended for travel to I.
That the Husband ensure that the children whilst in I contact their…

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 C and N

Details

AGLC: C and N [2003] FMCAfam 466
Case: [2003] FMCAfam 466
Decision Date: 2 September 2003

CaseChat Overview and Summary

In the case of C and N, the dispute arose between a husband and wife concerning the relocation of their two children, KJSJC and DGAC, to M. The matter was heard and decided by the Family Court of Australia. The central issue before the court was whether the husband should be granted permission to take the children out of Australia for a specific period, and if so, what conditions should accompany such permission.

The court considered the welfare of the children as paramount and examined various factors, including the children's health, educational needs, and the potential impact of the travel on their relationship with both parents. The husband sought permission to take the children to M for a period of approximately five weeks, from 16 December 2003 to 8 January 2004. The wife opposed this application, expressing concerns about the children's well-being and the impact on their routine and established relationships. After carefully weighing the evidence and submissions from both parties, the court concluded that the children's travel to M would not be detrimental to their welfare, provided certain conditions were met.

In its decision, the court granted the husband permission to take the children to M under specific terms. These included the delivery and return of the children's passports to the wife, financial arrangements for the travel, and provisions for the children's health and contact with their mother. The court also required the parties to undergo counselling to address their differences. Ultimately, the court's orders aimed to facilitate the children's travel while ensuring their safety, health, and continued contact with both parents.

Orders

Orders of the court

That the Husband be permitted to take the children KJSJC born 14 September 1998 and DGAC born 19 M 2001 out of the Commonwealth of Australia to M, I leaving Australia on 16 December 2003 and returning on 8 January 2004.

That the Wife deliver the passport for the child K to the Husband not later than 1 December 2003 and the Husband return the said passport to the Wife upon the said child’s return to Australia.

That the Wife forthwith sign all documents and give all consents to enable the child D to obtain a passport and I travel visa all at the expense of the Husband and on receipt the passport be delivered to the Wife and the Wife deliver the passport to the Husband not later than 1 December 2003 and the Husband return the said passport to the Wife upon the said child’s D return to Australia.

That the Wife forthwith provide the Husband with a photocopy of the child’s K’s passport and I travel visa and the same for the child D’s as soon as the passport is obtained.

(4A) That in order for the Husband to be able to obtain an air ticket for the said children the Wife deliver the passports of the children to the Husband at a time requested in writing not less than 7 days prior by the Husband and he return them not less than 48 hours thereafter.

That the Husband by 1 December 2003 pay the sum of $72,000.00 into the trust account of the Husband’s solicitor, to be held in trust on the following terms:

(a) to repay the amount to the Husband upon the children returning to Australia on or before 15 January 2004;

(b) in the event that the children are not returned to Australia by

15 January 2004 to be paid to the Wife.

That by 1 December 2003 the Husband provide in writing to the Wife:

(a) detailed travel itinerary including flight numbers and times;

(b) a telephone number for contact with the children whilst in I.

That the Wife at the expense of the Husband ensure that the children have all vaccinations as recommended for travel to I.

That the Husband ensure that the children whilst in I contact their Mother by telephone twice each week at the Husband’s expense.

That the Husband’s weekend contact otherwise be suspended from

8 January 2004 until 30 January 2004 and unless otherwise ordered then resume on the weekend commencing 6 February 2004.

10.

That pursuant to s.62F(2) of The Family Law Act 1975 the parties confer with a Counsellor nominated by the Director of Court Counselling of this Registry of the Court to endeavour to resolve the differences between them.

11.

That pursuant to s.39 of the

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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