CALLANAN & MAGRI - [2012] FMCAfam 246

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CALLANAN & MAGRI

[2012] FMCAfam 246

FAMILY LAW – Children – parenting orders – relocation – where mother seeks to relocate child’s residence to (omitted) – girl nearly 10 years of age – consideration of child’s views.

FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – sole parental responsibility.

Family Law Act 1975 (Cth), ss.60CA, 60CB, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598
Mallahan & Mallahan [2010] FamCA 631
Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343
MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424

Applicant:

MR CALLANAN

Respondent:

MS MAGRI

File Number:

SYC 1496 of 2010

Judgment of:

Scarlett FM

Hearing dates:

25 & 26 November, 20 December 2011, 21 February 2012

Date of Last Submission:

20 December 2011

Delivered at:

Sydney

Delivered on:

23 March 2012

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

Moylan Family Lawyers

Counsel for the Respondent:

Ms Kennedy

Solicitors for the Respondent:

Marks Griffith Bova

ORDERS

All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2002.
The Respondent Mother is restrained from relocating the residence of the child X born (omitted) 2002 outside the Commonwealth of Australia.
The child X is to live with the Mother in the Sydney Metropolitan Area.
Within forty-eight (48) hours of the Father receiving his work roster from his employer, he must provide to the Mother a copy of that roster by way of email or ordinary post.
Within forty-eight (48) hours of the Mother receiving the Father’s work roster the Mother is to nominate no fewer than eighteen nights (18) during the rostered period whilst the Father is in Australia that the child is to spend with the Father subject to the provisions of Order 8.
With respect to Order 6 above, the total of eighteen (18) nights that the child is to spend with the Father is to include:
(a)two (2) periods of two (2) overnight blocks on weekends;
(b)three (3) periods of three (3) overnight blocks; and
(c)the balance of the time is to be nominated by the Mother.
The time spent by the Father with the child according to these Orders is to be suspended and the child is to live with the Mother:
(a)from the last day of school at the end of Term 4 in 2012 and each alternate year thereafter until Australia Day 25 January in 2013 and each alternate year thereafter;
(b)from 2 January 2014 until Australia Day 2014 and each alternate year thereafter;
(c)for the whole of the Winter school holiday period in each year from the last day of school at the end of Term 2 until the day before school resumes…

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 CALLANAN & MAGRI

Details

AGLC: CALLANAN & MAGRI [2012] FMCAfam 246
Case: [2012] FMCAfam 246
Decision Date: 23 March 2012

CaseChat Overview and Summary

In the Family Court of Australia, the case of Callanan & Magni involved a dispute between the father and mother regarding the parenting arrangements for their nearly 10-year-old daughter, X. The mother sought to relocate X's residence to a different location, which the father opposed. The central issues before the court were whether the mother could relocate the child outside Australia and the allocation of parental responsibility between the parties.

The court was required to consider the best interests of the child, including the child's views, the principle of equal shared parental responsibility, and the specific circumstances of the case. The court noted that while the child expressed a preference to live with her mother, the weight given to such views depends on the child's age, maturity, and understanding. In this case, the court found that the child's views were not determinative but were a significant factor to consider.

After reviewing the evidence and arguments presented by both parties, the court determined that the mother could not relocate the child outside Australia. The court also found that the parents should have equal shared parental responsibility for the child. The detailed parenting orders specified the child's primary residence, the visitation schedule for the father, and the conditions under which the child could be taken overseas by either parent. The court aimed to provide a balanced arrangement that prioritised the child's welfare and facilitated meaningful relationships with both parents.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2002.

The Respondent Mother is restrained from relocating the residence of the child X born (omitted) 2002 outside the Commonwealth of Australia.

The child X is to live with the Mother in the Sydney Metropolitan Area.

Within forty-eight (48) hours of the Father receiving his work roster from his employer, he must provide to the Mother a copy of that roster by way of email or ordinary post.

Within forty-eight (48) hours of the Mother receiving the Father’s work roster the Mother is to nominate no fewer than eighteen nights (18) during the rostered period whilst the Father is in Australia that the child is to spend with the Father subject to the provisions of Order 8.

With respect to Order 6 above, the total of eighteen (18) nights that the child is to spend with the Father is to include:

(a) two (2) periods of two (2) overnight blocks on weekends;

(b) three (3) periods of three (3) overnight blocks; and

The time spent by the Father with the child according to these Orders is to be suspended and the child is to live with the Mother:

(a) from the last day of school at the end of Term 4 in 2012 and each alternate year thereafter until Australia Day 25 January in 2013 and each alternate year thereafter;

(b) from 2 January 2014 until Australia Day 2014 and each alternate year thereafter;

(c) for the whole of the Winter school holiday period in each year from the last day of school at the end of Term 2 until the day before school resumes at the beginning of Term 3;

(d) on Mother’s Day in each year; and

(e) on the Mother’s birthday in each year.

In the event that the Father is not required to work on the child’s birthday in any year the child is to spend a period of no less than three (3) hours with the father between the hours of 3:30pm and 6:30pm or at such other time as the parties shall agree.

10.

In the event that the Father is not required to work on Father’s Day in any year the child is to spend Father’s Day with the Father.

11.

In the event that the Father is not required to work on his birthday in any year the child is to spend a period of no less than three (3) hours with the father between the hours of 3:30pm and 6:30pm or at such other time as the parties shall agree.

12.

In the event that the Father is not required to work on Christmas Eve and Christmas Day in 2013 and each alternate year thereafter the child is to spend time with the father from 2:00pm on Christmas Eve until 2:00pm on Christmas Day.

13.

The school term is defined in accordance with the information contained within the New South Wales Public Schools Website (currently www.schools.nsw.edu.au ) in the “Term Dates” section or in any official New South Wales schools website that replaces that website.

14.

For the purposes of facilitating changeover in the event that the time that the Father spends with the child occurs on a school day then changeover is to take place at the child’s school and in the event that changeover occurs on a weekend or a public holiday or a day in the school holidays then the Mother is to deliver the child to the Father’s residence at the commencement of the time and the Father is to return the child to the Mother’s residence at the conclusion of the time.

15.

The Mother is permitted to take the child X out of Australia for the purpose of a holiday overseas:

(a) during the Christmas/January school holiday period at or between the times set out in Orders 8(a) and 8(b) above;

(b) during the Winter school holiday period at or between the times provided by Order 8(c) above; and

16.

The Father is permitted to take the child X out of Australia for the purpose of a holiday overseas for a period of no more than two (2) weeks in each year at such times as the parties shall agree.

17.

For the purposes of Orders 15 and 16 the parent proposing to travel overseas with the child must provide to the other parent no later than six (6) weeks before the intended trip a detailed itinerary including but not limited to copies of return airfares and contact details for the child to include telephone numbers and addresses of where the child will be staying and on what dates and times.

18.

Each parent must ensure that the child is able to speak to the other parent by telephone or communicate with the other parent by email at any reasonable time when the child is living with or spending time with the other parent.

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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