FAMILY COURT OF AUSTRALIA
CHAMPNESS & HANSEN [2008] FamCA 538
FAMILY LAW – CHILDREN – With whom a child lives – Relocation – application by mother seeking to relocate with children to Republic of Ireland, or in alternative Sydney – father seeks that mother return children to Adelaide – mother previously removed children from Australia to Ireland, agreeing to return children after father commenced Hague Convention proceedings – consideration of s 60CC factors – history of significant violent and controlling behaviour by father towards mother – children’s relationship with father – mother’s willingness to facilitate relationship – effect of relocation on children – difficulty and expense of communication and father spending time with children if relocation allowed – mother has support of extended family in Ireland – assessment of parties’ competing proposals regarding relocation – significant advantages and benefits to children if relocation to Ireland permitted – relocation in children’s best interests – satisfied provisions for contact and communication with children will enhance and sustain children’s relationship with father – mother permitted to relocate with children to Ireland from December 2008 – orders for father to spend supervised time and communicate with children prior to and following relocation.
FAMILY LAW – CHILDREN – parental responsibility – presumption of equal shared parental responsibility does not apply due to family violence (s 61DA(2)(b)) – also not in best interests of children (s 61DA(4)) – mother to have sole parental responsibility.
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA & 65DAE
AMS v AIF: AIF v AMS (1999) FLC 92-852
A v A: Relocation Approach (2000) FLC 93-035
H v L (2000) FLC 93-036
U v U (2002) FLC 93-112
Bolitho and Cohen (2005) FLC 93-224
Morgan and Miles [2007] FamCA 1230
Taylor and Barker [2007] FamCA 1246
APPLICANT: MR CHAMPNESS
RESPONDENT: MS HANSEN
INDEPENDENT CHILDREN’S LAWYER: REBECCA REED
FILE NUMBER: ADF 226 of 2005
DATE DELIVERED: 30 JUNE 2008
PLACE DELIVERED: ADELAIDE
PLACE HEARD: ADELAIDE
JUDGMENT OF: BURR J
HEARING DATE: 4, 5, 6, 7 & 8 FEBRUARY 2008 and 24 JUNE 2008 REPRESENTATION
COUNSEL FOR THE APPLICANT: MR HEFFERNAN
SOLICITOR FOR THE APPLICANT: HEFFERNAN & CO
COUNSEL FOR THE RESPONDENT: GRAEME D HEMSLEY
SOLICITOR FOR THE RESPONDENT: GRAEME HEMSLEY
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS HURLEY
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: LEGAL SERVICES COMMISSION
Orders
1.That the children E born … January 2001 and O born … December 2003 live with the mother.
2.That the mother have sole parental responsibility for the said children.
3.That the mother be permitted to relocate with the said children to Ireland as and from 22 December 2008.
4.That the father spend time with the said children as follows:-
(a)During school terms and until 19 December 2008, on up to two [2] occasions per calendar month, with the intention that the first such occasions be on Friday 1 August 2008 and Saturday 2 August 2008 UPON CONDITION that:-
(i) any such Friday time is outside of school…
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CaseChat Overview and Summary
The court was required to determine whether the proposed relocation to Ireland was in the children's best interests, considering the factors outlined in section 60CC of the *Family Law Act 1975* (Cth). A key issue was the impact of the relocation on the children's relationship with their father, including the practicalities and expense of communication and contact. The court also had to consider the presumption of equal shared parental responsibility and whether it applied, given the history of family violence.
Burr J found that the presumption of equal shared parental responsibility did not apply due to family violence and was not in the children's best interests. The court determined that the relocation to Ireland offered significant advantages and benefits to the children, and that provisions for contact and communication would enhance and sustain their relationship with the father. The court was satisfied that the mother's proposal for relocation was in the children's best interests.
Consequently, the court ordered that the children live with the mother and that the mother have sole parental responsibility. The mother was permitted to relocate with the children to Ireland from December 2008. Extensive orders were made regarding the father's supervised time with the children prior to and following the relocation, as well as provisions for communication between the father and the children. The father was also restrained from certain behaviours towards the mother and children.
Orders
Orders of the court
1. That the children E born … January 2001 and O born … December 2003 live with the mother.
2. That the mother have sole parental responsibility for the said children.
3. That the mother be permitted to relocate with the said children to Ireland as and from 22 December 2008.
4. That the father spend time with the said children as follows:-
(a) During school terms and until 19 December 2008, on up to two [2] occasions per calendar month, with the intention that the first such occasions be on Friday 1 August 2008 and Saturday 2 August 2008 UPON CONDITION that:-
(i) any such Friday time is outside of school hours;
(ii) all such time or times and dates near thereto are as advised by the Sutherland Inter-relate Children’s Contact Service (“CCS”) at Sutherland in the State of New South Wales; and
(iii) all such time is to be conducted at and supervised by the said CCS.
(b) During the following New South Wales school holiday periods:-
(i) in September / October 2008, from 10.00 am until 5.00 pm on three [3] consecutive days on dates to be agreed between the mother and the father, or in default of agreement, on 2, 3 and 4 October 2008;
(ii) in December 2008, from 10.00 am until 5.00 pm on five [5] consecutive days on dates to be agreed between the mother and the father, or in default of agreement, on 15, 16, 17, 18 and 19 December 2008
UPON CONDITION that:-
(iii) all such times spent by the father with the said children be supervised at all times by either or both of the said children’s paternal grandmother or paternal aunt;
(iv) all handovers be conducted between the mother and either or both of the paternal grandmother or paternal aunt to the exclusion of the father at the accommodation of the mother, with such address to be advised by the mother by telephone and confirmed in writing to the paternal grandmother and the paternal aunt at least fourteen [14] days before each period;
(v) the mother secure accommodation at or near Y in the north of the State of Queensland from at least 1 October 2008, or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to 4 October 2008 or the last day of such time to be spent by the father with the children if agreed otherwise and from 15 December 2008, or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to 19 December 2008 or the last day of such time to be spent by the father with the children if agreed otherwise;
(vi) either or both of the paternal grandmother and paternal aunt attend at the mother’s accommodation in or near Y at 10.00 am on 1 October 2008 or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to enable the mother to introduce the children to the paternal grandmother and/or the paternal aunt and to the intent and purpose that the mother, the children and either or both of the paternal grandmother and the paternal aunt spend the day together to a time no later than 5.00 pm;
(vii) either or both of the paternal grandmother and paternal aunt attend at the mother’s accommodation in or near Y at 9.00 am on 15 December 2008 or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to enable the children to become reacquainted with the paternal grandmother and/or the paternal aunt for an hour prior to the commencement of the father’s period of time to be spent with the children;
(viii) the parties share equally the cost of all return air fares for the mother and the said children, to be effected by the father paying same at first instance and the mother then reimbursing the father for one-half thereof by no later than the last day of the father’s time to be spent with the children on each occasion; and
(ix) at least 14 days prior to travel the father inform the mother in writing of the flight bookings that he has made for each holiday period of time he is to spend with the said children.
(c) As and from 22 December 2008 or the mother’s relocation with the children to Ireland, whichever is the later:-
(i) on two [2] occasions in 2009 / 2010 for a period of two [2] consecutive weeks on each occasion to be given and taken in either Ireland or Australia at the discretion of the father and at locations as are agreed between the parties, and in default of agreement as to dates, then as follows:-
A. during the July / August Irish school holidays;
B. during the December / January Irish school holidays but commencing no earlier than 28 December even if same results in the children missing some schooling in January.
(ii) on two [2] occasions in 2011 and each calendar year thereafter for a period of three [3] consecutive weeks on each occasion to be given and taken in either Ireland or Australia at the discretion of the father and at locations as are agreed between the parties, and in default of agreement as to dates, then as follows:-
A. during the July / August Irish school holidays;
B. during the December / January Irish school holidays but commencing no earlier than 28 December even if same results in the children missing some schooling in January.
UPON CONDITION that:-
(iii) if given and taken in Australia:-
A. the children be accompanied on the return flights by the mother to the exclusion of the father;
B. all such times spent by the father with the said children be supervised by either or both of the said children’s paternal grandmother or paternal aunt and that the children stay overnight with either or both of the paternal grandmother or paternal aunt;
C. all handovers be conducted at the accommodation of the mother with such address to be advised by the mother by telephone and confirmed in writing to the paternal grandmother and the paternal aunt, with handover at the commencement to be effected at 10.00 am and handover at the conclusion to be effected at 5.00 pm provided that at the mother’s discretion there is no requirement for her to remain at such accommodation between handovers;
D. the mother pay the cost of all air fares for the mother and the said children for the first three [3] of every four [4] occasions and the father pay same for the fourth [4th] of every four [4] occasions;
E. at least twenty-eight [28] days prior to travel the mother inform the father, the paternal grandmother and the paternal aunt in writing of the flight bookings made on the occasions she is to pay the air fares;
F. at least twenty-eight [28] days prior to travel the father inform the mother in writing of the flight bookings made on the occasions he is to pay the air fares.
(iv) if given and taken in Ireland:-
A. all such times spent by the father with the said children be supervised by a person(s) acceptable to the mother and the father and in default of agreement, then by a person(s) nominated by the mother and being a person(s) other than a member of the mother’s family;
B. the mother pay the cost of all return air fares for the father;
C. at least twenty-eight [28] days prior to travel the mother inform the father by telephone and confirmed in writing of the flight bookings made.
5. That as and from 22 December 2008 or the mother’s relocation with the said children to Ireland, whichever is the later, the mother do ensure that the said children communicate with the father at the cost of the mother as follows:-
(a) by letter at least once every two [2] months;
(b) by email communication at least once per fortnight;
(c) by telephone, webcam or skype communication at least once per fortnight at a time to be agreed between the parties or in default of agreement, at 8.00 am (Ireland time) on the Thursday of each week;
(d) by providing the father with a video / DVD recording of the said children at least once every six months.
6. That the mother do mail or otherwise provide to the father at the cost of the mother and within fourteen days of receipt of same by her, copies of all school reports and school photographs in relation to the said children and do keep the father informed of any medical emergency or serious medical condition affecting the said children.
7. That the mother do:-
(a) prior to her relocation to Ireland with the said children, keep the father informed at all times of a mailing address for the said children; and
(b) after her relocation to Ireland with the said children, keep the father informed at all times of a mailing and residential address for the said children and a telephone number.
8. The father be restrained and an injunction is hereby granted restraining him from:-
(a) spending any time with the said children except as specified in these Orders or as is otherwise agreed in writing between the parties;
(b) approaching the mother, harassing, abusing, assaulting, intimidating or threatening the mother or being within 500 metres of any premises occupied by the mother and the said children from time to time;
(c) discussing any aspect of his relationship with the mother, these proceedings or the Orders made in these proceedings with the said children or within the earshot of the said children and from permitting any other person to do so.
9. That the Independent Children’s Lawyer do:-
(a) within fourteen [14] days of the date hereof inform the paternal grandmother and the paternal aunt of the Orders made in these proceedings;
(b) within fourteen [14] days of the date hereof provide to the paternal grandmother and the paternal aunt a copy of the Legal Services Commission pamphlet on the role and responsibilities of supervisors of time spent by parents with children;
(c) within fourteen [14] days of the date hereof provide to Ms C a copy of these Orders and Reasons for Judgment; and
(d) within twenty one [21] days of the date hereof forward a copy of these Orders and Reasons for Judgment to the paternal grandmother and the paternal aunt.
10. That within twenty eight [28] days of the date hereof, the father enrol in and advise the Independent Children’s Lawyer in writing of his enrolment in the Kids Are First programme conducted by Anglicare and do complete such programme.
11. That upon compliance with paragraph 9 of these Orders and upon receipt of the advice from the father as ordered in paragraph 10 hereof, the appointment of the Independent Children’s Lawyer be discharged.
12. That all applications be removed from the pending 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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