CH and TW - [2006] FMCAfam 607

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CH & TW

[2006] FMCAfam 607

FAMILY LAW – Parenting – relocation – application by mother to relocate from Sydney to Sunshine Coast, Queensland – child 6 years – poor communication between parties – consideration of whether meaningful relationship with father may be improved if mother permitted to relocate – mother permitted to relocate child’s residence.

Family Law Act 1975

A & A: Relocation Approach (2000) FLC 93-035
AMS & AIF; AIF & AMS (1999) FLC 92-852
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Bolitho & Cohen (2005) FLC 93-224
H & W (1995) FLC 92-598
Jones v Dunkel(1959) 101 CLR 298
R & R; Children’s Wishes (2000) FLC 93-000
U v U (2002) 211 CLR 238

Applicant:

Respondent:

File Number:

PAM 1522 of 2002

Judgment of:

Sexton FM

Hearing dates:

4, 5 and 8 September 2006

Date of Last Submission:

8 September 2006

Delivered at:

Sydney

Delivered on:

10 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr D Dura

Solicitors for the Applicant:

Constantine G Pavlis & Co.

Solicitors for the Respondent:

Browns The Family Lawyers

ORDERS

All previous parenting orders be discharged.
Subject to Orders (14) and (15) herein, the mother have sole parental responsibility for the major decisions concerning the child BDH, born 2 August 2000 [referred to herein as “Jack”].
Each party have sole responsibility for making decisions about other aspects of the care, welfare, development and parental responsibility of Jack on a day to day basis during periods when Jack is in that party’s care.
The mother be permitted to relocate Jack’s residence from the Sydney Metropolitan area to the Sunshine Coast in Queensland from 5 January 2007.
Jack live with the mother.
Jack spend time with the father as follows:
(a)Each school holiday period at the end of Terms 1, 2 and 3 commencing in the first Queensland school holiday period in 2007, from the first Sunday of the school holiday period arriving at Sydney airport by midday until the Tuesday of the week prior to the commencement of the new school term returning to Maroochydore airport by no later than 5.00p.m.;
(b)During each Christmas school holiday period for a period of 3 weeks from 26 December in years ending in an odd number and from 23 December in years ending in an even number, commencing in the Christmas school holiday period in December 2007 arriving at Sydney airport by midday on the first day of the period and returning to Maroochydore airport by no later than 5.00p.m on the last day of the period;
(c)For one weekend during each school term commencing Term 1 2007 from Friday afternoon when Jack will arrive at Sydney airport before 7.00p.m. until Sunday afternoon (or Monday afternoon, if a public holiday) when Jack will arrive at Maroochydore airport by 5.00p.m, such weekend to be agreed between the parties by no later than the end of the first week of the relevant school term and…

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 CH and TW

Details

AGLC: CH and TW [2006] FMCAfam 607
Case: [2006] FMCAfam 607
Decision Date: 10 November 2006

CaseChat Overview and Summary

The case of CH and TW involves a dispute between the parents of Jack, a child born in 2000, concerning various aspects of his care, welfare, and development. The primary issues revolve around the allocation of parental responsibility, residence, and visitation schedules. The matter was heard and determined by the Family Court of Australia.

The legal issues before the court encompassed the allocation of parental responsibility, determination of residence, and the establishment of a visitation schedule. The court had to decide on the distribution of major and day-to-day decision-making responsibilities, Jack's primary residence, and a detailed visitation arrangement that balanced the needs and rights of both parents. Additionally, the court addressed logistical issues such as transport, communication, and the sharing of information concerning Jack's schooling, health, and extracurricular activities.

The court found that the mother should have sole responsibility for major decisions concerning Jack but each parent should have sole responsibility for day-to-day decisions during their respective care periods. The mother was permitted to relocate Jack's residence from Sydney to the Sunshine Coast, with Jack primarily living with her. The court devised a comprehensive visitation schedule for the father, including specific arrangements for school holiday periods, weekends, and special occasions. The court also outlined detailed logistical and informational requirements to facilitate communication and cooperation between the parents. The mother was ordered to meet the costs of certain airfares and to arrange Jack's transport to and from airports. The court mandated that each parent attend a post-separation parenting program, emphasizing the importance of communication and conflict resolution.

The court issued detailed orders regarding the allocation of parental responsibilities, Jack's residence, and a visitation schedule that included specific timelines and conditions for the father's time with Jack. The court also mandated the sharing of information and communication protocols between the parents, ensuring that both could remain involved in Jack's life, education, and well-being. The orders further stipulated that each parent must attend a post-separation parenting program and provide evidence of completion by a specified date.

Orders

Orders of the court

All previous parenting orders be discharged.

Subject to Orders (14) and (15) herein, the mother have sole parental responsibility for the major decisions concerning the child BDH, born 2 August 2000 [referred to herein as “Jack”].

Each party have sole responsibility for making decisions about other aspects of the care, welfare, development and parental responsibility of Jack on a day to day basis during periods when Jack is in that party’s care.

The mother be permitted to relocate Jack’s residence from the Sydney Metropolitan area to the Sunshine Coast in Queensland from 5 January 2007.

Jack live with the mother.

Jack spend time with the father as follows:

(a) Each school holiday period at the end of Terms 1, 2 and 3 commencing in the first Queensland school holiday period in 2007, from the first Sunday of the school holiday period arriving at Sydney airport by midday until the Tuesday of the week prior to the commencement of the new school term returning to Maroochydore airport by no later than 5.00p.m.;

(b) During each Christmas school holiday period for a period of 3 weeks from 26 December in years ending in an odd number and from 23 December in years ending in an even number, commencing in the Christmas school holiday period in December 2007 arriving at Sydney airport by midday on the first day of the period and returning to Maroochydore airport by no later than 5.00p.m on the last day of the period;

(c) For one weekend during each school term commencing Term 1 2007 from Friday afternoon when Jack will arrive at Sydney airport before 7.00p.m. until Sunday afternoon (or Monday afternoon, if a public holiday) when Jack will arrive at Maroochydore airport by 5.00p.m, such weekend to be agreed between the parties by no later than the end of the first week of the relevant school term and failing agreement by that date, such weekend shall be the fifth weekend of the school term;

(d) In the event Easter falls outside the Queensland school holidays, on the Easter weekend in each year ending in an even number from Friday, arriving at Sydney airport no later than midday until Tuesday afternoon, arriving at Maroochydore airport no later than 5.00p.m.;

(e) In the event the mother travels to Sydney, the mother give the father notice as soon as practicable but not less than 7 days in advance of her travel and the mother ensure Jack spends as much time with the father as practicable during her time in Sydney;

(f) In the event the father travels to the Sunshine Coast, the father give the mother notice as soon as practicable but not less than 7 days in advance of his travel and the mother ensure Jack spends the whole of the period the father is on the Sunshine Coast, with the father; and

(g) At additional or alternate times as agreed between the parties.

For the purposes of Jack spending time with the father in accordance with Order (6) herein, the mother meet the whole of the costs of airfares between Sydney and Maroochydore until the commencement of first Term 2008 and thereafter the mother meet the cost of airfares from Sydney to Maroochydore and the father meet the cost of airfares from Maroochydore to Sydney noting the costs incurred by the father for Jack’s travel may be taken into account in determining his child support liability for Jack.

The mother arrange Jack’s transport to and from Maroochydore airport and the father arrange Jack’s transport to and from Sydney airport.

Unless otherwise agreed between the parties, Jack spend the following additional time with the father:

(a) For the first two of every three weekends from midday Saturday until 5.00p.m. Sunday from the first weekend after the making of these orders until the commencement of the Christmas school holiday period in 2006;

(b)

From Saturday 23 December 2006 at midday until Monday

25 December at 2.00p.m.; and

(c) For a period of seven days from midday 28 December 2006 until 5.00p.m on 4 January 2007 and for a period of seven days from midday 20 January 2007 until 5.00p.m. on 27 January 2007

when the mother will remain in Sydney for all periods Jack is with the father and the mother will collect and deliver Jack from the father’s residence at the commencement and conclusion of his periods with the father, unless alternative arrangements are agreed between the parties.

Each party facilitate Jack telephoning the other parent at any reasonable time but Jack communicate with the father by telephone at least twice each week, when Jack shall telephone the father on one occasion, being Sunday at 7.00 pm. unless otherwise agreed, and when the father shall telephone Jack on the other occasion, being Thursday at 7.00 pm. unless otherwise agreed.

Each party facilitate telephone communication between Jack and the paternal grandparents at any reasonable time, but the mother ensure Jack is available to receive a telephone call from the paternal grandparents once a week, being a Friday at 7.00p.m. unless otherwise agreed.

The mother install computer equipment at her premises within 28 days of her change of residence to the Sunshine Coast with access to email and a webcam for the purpose of the father having email and live webcam communication with Jack.

The mother place at least one “4 x 6” framed photograph of Jack and his father in a prominent position in her residence within seven days of her change of residence to the Sunshine Coast.

The mother forthwith enrol Jack to commence at MPS from the commencement of the 2007 school year and thereafter the mother be restrained from changing Jack’s school until the completion of his primary school education unless the parties otherwise agree in writing to a change in Jack’s school.

The mother consult the father in relation to Jack’s secondary schooling and the parties make the decision about Jack’s secondary schooling in consultation with each other.

Each party ensure the other knows the whereabouts of Jack and his contact details if Jack is staying away from either party’s residence for more than 2 nights, to increase to 4 nights when Jack is 10 years old.

The parties keep each other informed and updated in relation to any medical issues involving Jack, including providing each other with the names and full contact details of all medical practitioners attended upon by Jack and each party provide his/her authority for the other parent to communicate with all medical practitioners attended upon by Jack from time to time.

This order be sufficient authority to provide the father with Jack’s school reports, dates for sports days, parent/ teacher nights, concerts and other events and/or any other information from MPS or other school Jack attends in accordance with these orders and that each party be at liberty to attend any and all activities to which parents are invited to attend.

Each party keep the other informed of any and all extracurricular activities engaged in by Jack and each party authorise the other to communicate with and obtain copies of all relevant information concerning such extracurricular activities from the organisers of same, and each party have liberty to attend at all Jack’s extracurricular activities in which he may be involved.

The mother provide the father with a written report of Jack’s progress, health and activities in May and October each year.

The mother ensure Jack is given any cards, letters, gifts or other items sent to him by the father or members of the father’s extended family, as soon as any such item is received.

Each party attend a post separation parenting program, ensuring the following:

(a) The program selected covers the importance of communication for separated parents and the impact of conflict on children of separated parents; and

(b) Each party provides a certificate of completion of that program to the other party by 30 April 2007

and

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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