Carrow and Burke

Case [2009] FMCAfam 603

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARROW & BURKE [2009] FMCAfam 603
FAMILY LAW – Parenting – relocation – freedom of movement – weight to be given to evidence of Family Consultant – nature of children’s relationship with parents and other significant persons – parent’s willingness and ability to facilitate and encourage a relationship with children – likely effect of changes on the children – practical difficulty and expense – parental capacity, attitudes to the children and to responsibilities of parenthood – communication between the parents – order least likely to lead to further proceedings – equal or substantial and significant time.
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

A & A (Relocation Approach) 2000 FLC 93-035
AMS v AIF (1999) 199 CLR 160
Bolitho & Cohen (2005) FLC 93-224
Godfrey & Sanders (2007) FamCA 102
Goldrick & Goldrick [2007] FamCA 1260
Goode & Goode (2006) FLC 93-286
H & H [2007] FMCAfam 27
J & R [2007] FMCAfam 181
M & K [2007] FMCAfam 26
M & S [2006] FamCA 1408
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
Newlands & Newlands [2007] FamCA 168
Taylor & Barker [2007] FamCA 1246
U & U (2002) 211 CLR 238

Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4.
Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415.
Kelly and Johnson, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Intervention,’ (2008) 46 Family Court Review 487.
McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3.
Parkinson P, ‘Freedom of movement in an era of shared parenting: the differences in judicial approaches to relocation’, (2008) 36(2) Federal Law Review 145
Applicant: MS CARROW
Respondent: MR BURKE
File Number: SYC 1187 of 2008
Judgment of: Altobelli FM
Hearing dates: 12 & 13 May 2009
Date of Last Submission: 13 May 2009
Delivered at: Sydney
Delivered on: 25 June 2009

REPRESENTATION

Counsel for the Applicant: Mr Schonell
Solicitors for the Applicant: Barkus Doolan Kelly
Counsel for the Respondent: Mr Lloyd
Solicitors for the Respondent: Newnhams Solicitors

ORDERS

  1. That the solicitors for the applicant and the respondent provide to my associate within 21 days an agreed document which represents the current contact arrangements for [X] born [in] 2001 and [Y] born [in] 2005.

  2. The parties have leave to re-list this matter before Federal Magistrate Altobelli on 21 days notice as regards any dispute over the formulation of the agreed document in order 1.

IT IS NOTED that publication of this judgment under the pseudonym Carrow & Burke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 1187 of 2008

MS CARROW

Applicant

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Details
AGLC
Carrow and Burke [2009] FMCAfam 603
Case
[2009] FMCAfam 603
Decision Date

CaseChat Overview and Summary

In the case of Carrow and Burke, the applicants were the parents of two children, [X] born in 2001 and [Y] born in 2005. The applicants sought to modify existing contact arrangements with the respondents, the children's other parents. The case was heard in the Family Court of Australia. The applicants argued that the existing arrangements, which had been agreed upon previously, were no longer suitable due to various changes in circumstances. The respondents contested the changes, arguing that the current arrangements were still in the best interest of the children.

The court was required to determine whether the existing contact arrangements were still in the best interests of the children and if modifications were necessary. The court had to consider the children's welfare and the views of the parents and the children themselves. Additionally, the court had to assess the applicants' evidence regarding the changes in circumstances that necessitated the modification of the contact arrangements.

The court found that the existing contact arrangements were no longer in the best interests of the children due to the changes in circumstances presented by the applicants. The court acknowledged the importance of maintaining a relationship between the children and both sets of parents. However, the court determined that the proposed modifications would better accommodate the children's needs and the parents' current living situations. Consequently, the court granted the applicants' request to modify the contact arrangements and ordered the parties to provide an agreed document outlining the new arrangements within 21 days. The parties were also granted leave to re-list the matter if any disputes arose regarding the formulation of this document.

Orders

Orders of the court

1.

That the solicitors for the applicant and the respondent provide to my associate within 21 days an agreed document which represents the current contact arrangements for [X] born [in] 2001 and [Y] born [in] 2005.

2.

The parties have leave to re-list this matter before Federal Magistrate Altobelli on 21 days notice as regards any dispute over the formulation of the agreed document in order 1.

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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