C & C - [2007] FMCAfam 1

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & C

[2007] FMCAfam 1

FAMILY LAW – Children – planned relocation by mother of children aged 13 and 5 from D to C – application of the presumption contained in s.61DA – whether parties should have equal shared parental responsibility for the children – father seeks that the presumption should apply and the mother should be restrained from moving the residence of the children from D and a shared parenting regime remain in place – whether the children can have a meaningful relationship with both parents in the event of the proposed relocation – consideration of concept of freedom of movement – mother has re-partnered and foresees financial and employment prospects for herself and her partner in C – older child expresses a view in favour of relocation – evaluation of parties’ competing proposals.

Family Law Act 1975 – ss.60B, 60CC, 61DA, 64B, 65D, 65DAA, 65DAE

Goode & Goode [2006] FamCA 1346
U & U [2002] FLC 93-112
B v B [2006] FamCA 1207
AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A: Relocation Approach (2000) FLC 93-035
Bolitho & Cohen (2005) FLC 92-224
B v B: Family Law Reform Act (1997) FLC 92-755
D and S V (2003) FLC 93-137
Fragomeli & Fragomeli (1993) FLC 92-393

Applicant:

D M C

Respondent:

T V C

File number:

DNM 416 of 2003

Judgment of:

Brown FM

Hearing dates:

20 & 21 December 2006

Date of last submission:

21 December 2006

Delivered at:

Darwin

Delivered on:

17 January 2007

REPRESENTATION

Counsel for the Applicant:

Ms Truman

Solicitors for the Applicant:

Maleys

Counsel for the Respondent:

Ms Farmer

Solicitors for the Respondent:

Withnalls

ORDERS

The parties have equal shared parental responsibility for the children of the marriage S T C born 17 January 1993 and N T C born 2 October 2001 (hereinafter referred to as “the children”).
The children live with the mother.
From after 26 January 2007 the mother be permitted to live with the children in C in the Australian Capital Territory.
The children spend time with the father as follows:
(a)For four weeks of the Australian Capital Territory December/January school holidays in each year so that such four week period includes Christmas Day in 2007 and each alternate year thereafter but does not include Christmas Day in 2008 and each alternate year thereafter;
(b)For the whole of the mid year (June/July) Australian Capital Territory school holiday in 2007 and each such mid year school holiday thereafter;
(c)For either the whole of the end of first term/semester Australian Capital Territory school holiday in each year or the whole of the end of third term/semester Australian Capital Territory school holiday in each year provided the father gives 28 days notice in writing to the mother in respect of which of these holidays he proposes to spend with the children;
(d)At any other times as may be agreed between the parties from time to time.
The parties bear the costs of…

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

AGLC: C & C [2007] FMCAfam 1
Case: [2007] FMCAfam 1
Decision Date: 17 January 2007

CaseChat Overview and Summary

The case involves parents C and C, who were married but have since separated. They have two children, S and N, born in 1993 and 2001, respectively. The dispute primarily concerns the allocation of parental responsibility and the arrangement of time-sharing with the children post-separation. The Family Court of Australia was tasked with determining these issues.

The court had to address several key legal issues, including the allocation of shared parental responsibility for the children, the primary residence of the children, the specifics of the time-sharing arrangement, and measures to ensure the children's well-being and communication between parents and children. Additionally, the court needed to decide on the financial responsibilities for travel expenses, the need for communication between parents and children, and the implications of the parents being in the same location during Christmas.

In its decision, the court ruled that both parents would have equal shared parental responsibility for the children, who would primarily reside with the mother. The father was granted specific time-sharing periods with the children, including during certain school holidays and at agreed-upon other times. The court also mandated that the parents bear the costs of travel for these visits equally and that they communicate regularly. Furthermore, the court issued an injunction against both parents to prevent them from disparaging each other in front of the children or allowing others to do so. The court also required the parents to keep each other updated on the children's health and school activities and to provide each other with their contact details.

The court issued several specific orders to ensure the children's best interests, including the allocation of parental responsibilities, the primary residence, the detailed time-sharing schedule, communication provisions, and injunctions against derogatory comments. All other outstanding applications were dismissed.

Orders

Orders of the court

The parties have equal shared parental responsibility for the children of the marriage S T C born 17 January 1993 and N T C born 2 October 2001 (hereinafter referred to as “the children”).

The children live with the mother.

From after 26 January 2007 the mother be permitted to live with the children in C in the Australian Capital Territory.

The children spend time with the father as follows:

(a) For four weeks of the Australian Capital Territory December/January school holidays in each year so that such four week period includes Christmas Day in 2007 and each alternate year thereafter but does not include Christmas Day in 2008 and each alternate year thereafter;

(b) For the whole of the mid year (June/July) Australian Capital Territory school holiday in 2007 and each such mid year school holiday thereafter;

(c) For either the whole of the end of first term/semester Australian Capital Territory school holiday in each year or the whole of the end of third term/semester Australian Capital Territory school holiday in each year provided the father gives 28 days notice in writing to the mother in respect of which of these holidays he proposes to spend with the children;

(d) At any other times as may be agreed between the parties from time to time.

The parties bear the costs of the air travel necessary for the children to spend time with the father pursuant to orders 4(a) to (c) hereof in equal proportions.

The father communicate with the children by telephone or webcam on two occasions each week at times to be agreed between the parties.

In the event that both parties are in the same location at Christmas the party who is not otherwise entitled to spend time with the children at Christmas pursuant to these orders shall spend time with the children from 6.00pm on 25 December to 6.00pm on 26 December or at such other times as agreed between the parties to ensure that the children spend a significant period of time with that parent during the Christmas period, which is taken to include both Christmas Day and Boxing Day.

The parties provide to the other at all times their respective residential and postal addresses and their electronic contact details including contact telephone numbers, both mobile, home landline and work landline and email addresses and inform the other of any changes of these details within two days of such change.

The mother and father each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.

10.

The mother authorise the principal of each school attended by the children from time to time to be sent to the father:

(a) A photocopy of each school report concerning each child;

(b) An order form for each school photograph of each child.

11.

The father be at liberty to attend or visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.

12.

The father and mother be restrained and an injunction be granted restraining them from denigrating the other, the other parent’s partner or the other parent’s family or permitting any person in their presence to denigrate the other parent, the other parent’s partner or the other parent’s family to or in the presence of the children.

13.

All outstanding applications be otherwise dismissed.

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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