FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALCOTE & RADANT | [2020] FCCA 1829 |
| Catchwords: FAMILY LAW – Application for relocation – 13 year old child strongly aligned with the father – father’s relocation proposals likely to have positive benefits for child’s educational, social and working life. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA |
| Cases cited: Mazorski & Albright [2007] FamCA 520 Taylor & Barker [2007] FamCA 1246 McCall & Clarke (2009) FLC 93‑405 Goode & Goode [2006] FamCA 1346 A v A Relocation Approach (2000) FLC 93-035 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 U v U (2002) FLC 93-112 Lansa & Clovelly [2010] FamCA80 Sampson & Hartnett [2007] FamCA 1365 Rose and Rose [2009] FamCAFC 81 Pitken and Hendry [2008] FamCA 186 |
| Applicant: | MR CALCOTE |
| Respondent: | MS RADANT |
| File Number: | BRC 5235 of 2010 |
| Judgment of: | Judge Willis AM |
| Hearing dates: | 20 February, 13 and 19 March 2020 |
| Date of Last Submission: | 19 March 2020 |
| Delivered at: | Cairns |
| Delivered on: | 6 July 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Mr Eylander |
| Solicitors for the Independent Children's Lawyer: | Mr Wright |
ORDERS
All previous Orders are discharged.
Neither party is to discuss these Orders directly or indirectly with the child until such time as Order 28 (in which the Independent Children’s Lawyer has had the opportunity to explain the Orders to the child) has been attended to as confirmed by the Independent Children’s Lawyer.
BY CONSENT IT IS ORDERED THAT:
The Father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child X born in 2007 (“the child”), subject to the communication and notification of such decisions to the Mother, including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
In exercising his sole parental responsibility unless the urgency of the situation prevents him from doing so, the Father will give the Mother seven days notification before making a major long-term decision. The Mother is permitted to respond in writing promptly with her view however the decision is to be made solely by the Father. Specifically in relation to schooling, the Father will give the Mother as much notice as possible as to any proposed change and the Mother will have an opportunity to respond promptly. The final decision lies solely with the Father. THE COURT NOTES THAT the Father has already indicated the intended schools in relation to the proposed relocation to the New South Wales area.
The child is to live with the Father at all times other than when the child spends holiday time with the Mother as set out in these Orders.
IT IS ORDERED THAT:
The Father is permitted to relocate the child’s residence to New South Wales, such relocation to occur at timing solely determined by the Father.
Upon the relocation to New South Wales, the child will spend holiday…
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- CALCOTE & RADANT [2020] FCCA 1829
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- [2020] FCCA 1829
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CaseChat Overview and Summary
The court was required to determine whether the father's proposed relocation to New South Wales was in the best interests of the child, X. This involved assessing the child's strong alignment with the father and the potential positive impacts of the relocation on X's educational, social, and future working life. The court also had to consider the arrangements for the child's time with each parent following any relocation, including holiday arrangements and communication protocols.
The court's reasoning, based on the consent orders, indicated a finding that the relocation was in the child's best interests. The father was granted sole parental responsibility for long-term decisions concerning the child's care, welfare, and development, with a requirement to notify the mother of such decisions. The child was ordered to live with the father, and the father was permitted to relocate the child to New South Wales. Specific orders were made regarding the division of school holidays between the parents, travel arrangements, and communication, including regular telephone and FaceTime contact with the mother. The court also imposed restraints on the mother regarding her ability to direct the child's schooling and medical treatment, reflecting the father's sole parental responsibility in these areas. The Independent Children's Lawyer was directed to explain the orders to the child.
Orders
Orders of the court
1.
All previous Orders are discharged.
2.
Neither party is to discuss these Orders directly or indirectly with the child until such time as Order 28 (in which the Independent Children’s Lawyer has had the opportunity to explain the Orders to the child) has been attended to as confirmed by the Independent Children’s Lawyer.
BY CONSENT IT IS ORDERED THAT:
3.
The Father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child X born in 2007 (“the child”), subject to the communication and notification of such decisions to the Mother, including but not limited to:
(a) a child’s education (both current and future);
(b) child’s religious and cultural upbringing;
(c) a child’s health;
(d) a child’s name;
4.
In exercising his sole parental responsibility unless the urgency of the situation prevents him from doing so, the Father will give the Mother seven days notification before making a major long-term decision. The Mother is permitted to respond in writing promptly with her view however the decision is to be made solely by the Father. Specifically in relation to schooling, the Father will give the Mother as much notice as possible as to any proposed change and the Mother will have an opportunity to respond promptly. The final decision lies solely with the Father. THE COURT NOTES THAT the Father has already indicated the intended schools in relation to the proposed relocation to the New South Wales area.
5.
The child is to live with the Father at all times other than when the child spends holiday time with the Mother as set out in these Orders.
IT IS ORDERED THAT:
6.
The Father is permitted to relocate the child’s residence to New South Wales, such relocation to occur at timing solely determined by the Father.
7.
Upon the relocation to New South Wales, the child will spend holiday time with the Mother as follows (unless agreed otherwise in writing):
(a) For one half of each of the school holiday periods in Easter, June/July and September/October, commencing the first half of the holidays in even numbered years and the second half in odd numbered years. The first half of the holiday will commence on the Saturday following the last day of school and conclude the following Sunday and the second half of the holidays will commence on the Saturday of the mid-weekend of the holidays and will always conclude no later than the last Sunday before school resumes;
(b) In relation to Christmas Holidays, the child will spend four weeks with the Mother. The first four weeks and the last four weeks will alternate as set out in Order 7(a) herein. The first half of the holiday will commence on the Saturday following the last day of school and conclude after four weeks and when the four week period is taken as the second part of the holidays, the holidays will always conclude no later than the final Saturday before school resumes.
8.
The child will spend the balance of all of the school holidays with the Father.
9.
The Father is to pay for the child’s costs of travel to and from the Father’s residence to the City B Airport or other City B location as nominated by the Father. The mode of travel to and from City B is at the Father’s sole discretion and the Mother is to do all acts and things to collect the child from the City B Airport or other location nominated by the Father.
10.
The Father will provide the child’s travel itinerary to the Mother no less than three days prior to the child’s travel to City B.
11.
In the event that the Mother proposes travelling to New South Wales for a short holiday period to spend time with the child, the Mother is to give no less than 2 weeks notice to the Father. The Father will do all acts and things to ensure that he facilitates reasonable time for the child to spend with the Mother such time will not occur during the child’s periods of school holidays with the Father. The time to be spent in New South Wales by the Mother in this manner is to be discussed between the parties taking into account X’s age and work commitments and schooling or other obligations.
12.
The Father will do all acts and things to ensure the child has telephone/FaceTime with the Mother each Tuesday and Sunday at 6:30 pm and at all reasonable times as requested by the child. The Tuesday and Sunday can be varied from time to time by the Father to accommodate the child’s extra-curricular activities.
BY CONSENT IT IS ORDERED:
13.
Each party will inform the other of any significant medical appointments or procedures or medication prescribed for the child by way of Talking Parents App NOTING THAT the Father has sole parental responsibility for medical decisions.
14.
Each of the Mother and Father will contact the other parent straight away in the event of any medical emergency involving the child or as soon as practicable of a medical emergency involving themselves.
15.
Each party will keep the other informed of their current residential address and mobile phone number and any changes must be notified within 48 hours.
16.
Each party has liberty to provide a copy of these Orders to the child’s school and treating medical practitioners.
17.
These Orders act as authority for either parent to obtain at their own expense, school reports, photographs, certificates and awards received by the child and other school communication such as newsletters normally provided to parents NOTING THAT the Father has sole parental responsibility for decisions regarding the child’s education.
18.
Each party is at liberty to attend all educational events and extra-curricular activities at which the child attends subject always to the sole discretion of the school or organising body and subject to the restraint contained in Order 20(e) herein.
19.
During the time the child is with either parent, each parent is not to interrogate the child about his life with the other parent and should always speak respectfully and without denigration toward the other parent in the presence or hearing of the child. Each party will remove the child from the presence or hearing of any person denigrating either party. Denigration for the purpose of this order includes a parent referring to the other parent with a derogatory nickname.
IT IS ORDERED THAT:
20.
The Mother is restrained from:
(a) Removing the child from any school he attends other than as set out in the terms of these Orders;
(b) Giving any directions of any kind to the school that the child attends from time to time NOTING THAT the Father has sole parental responsibility for decisions relating to education;
(c) Giving any directions of any kind to Sporting body or other authority of any other extra-curricular activity that the child attends from time to time;
(d) Giving directions to doctors or dentists regarding the child’s treatment.
(e) Attending at the child’s school or extra-curricular activities without giving the father and the school or organising body at least 5 days notice.
21.
In relation to the child’s time with the Mother, the Mother is to do all acts and things necessary and cooperate with the Father in all respects to ensure that the child is returned to the Father pursuant to the terms of these Orders.
Passport
22.
The parties are to do all acts and things to sign all documents necessary to obtain a passport for the child X born in 2007 (“the child”). In the event the Mother fails or refuses to sign the documents, the passport is to issue notwithstanding that the Mother has failed to sign all documents necessary to do so.
23.
The Father is responsible for the costs of the passport issuing and is to retain possession of the passport.
24.
The Father and Mother are permitted to remove the child from the Commonwealth of Australia for the purposes of a holiday at times when the child is spending holidays with each respective parent or other times as agreed between the parties in writing.
Until the Father and child leave City B
25.
The child will spend time with the Mother after school Thursday to the commencement of school Monday or Tuesday if Monday is a pupil free day or holiday.
26.
The Mother is to do all acts and things to ensure that the child is assisted to leave City B with the Father.
Other Orders
27.
The Independent Children’s Lawyer is to forthwith make the necessary arrangements to have the terms of these Orders explained to X including the holiday provisions with the Mother in City B.
28.
The Father is to do all acts and things to deliver up the child to the Independent Children’s Lawyer for the purposes of having the Orders explained to the child at a date and time indicated by the Independent Children’s Lawyer.
29.
In the event the child is with the Mother, the Mother is to do all acts and things to hand the child to the Father to enable the Father to comply with Order 28 herein.
30.
The Independent Children’s Lawyer will be discharged 30 days after he has explained the Orders to the child save and except for an appeal.
31.
All outstanding Applications are removed from the pending cases list.
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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