Colburn and Colburn - [2009] FMCAfam 1142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COLBURN & COLBURN

[2009] FMCAfam 1142

FAMILY LAW – Parenting orders – children aged six years and three months and three years and two months – children currently living with the mother and spending time with the father – mother seeking to relocate to Adelaide –consideration of “meaningful relationship” – best interests of the child – relocation after two years.

Family Law Act 1975 (Cth) – Part VII

Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607
A v A Relocation Approach (2000) 26 Fam LR 382
U v U (2002) 211 CLR 238; (2002) FLC 93-112
D v SV (2003) 30 Fam LR 91; FLC 93-137
Taylor & Barker [2007] FamCA 1246; (2007) 37 Fam LR 461
P v P [2006] FMCAfam 518
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
G & C [2006] FamCA 994
McCall & Clark [2009] FamCAFC 92

Applicant:

MR COLBURN

Respondent:

MS COLBURN

File Number:

NCC 835 of 2008

Judgment of:

Coakes FM

Hearing dates:

3, 4, 6 & 31 August & 10 & 23 September 2009

Date of Last Submission:

23 September 2009

Delivered at:

Newcastle

Delivered on:

9 November 2009

REPRESENTATION

Solicitor for the Applicant:

Mr Fox

Solicitors for the Applicant:

Fox Murrell Solicitors

Solicitor for the Respondent:

Mr Byrnes

Solicitors for the Respondent:

Byrnes & Cox Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Graham

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission of New South Wales

ORDERS

The mother and the father have equal shared parental responsibility for their children [X] born in 2003 (“[X]”) and [Y] born in 2006 (“[Y]”) (“The children”).
The parents are to consult each other in relation to any long term issues concerning [X] and [Y] and are to make a genuine effort to come to a joint decision concerning their care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:
(a)The education of either of them (both current and future);
(b)The religious and cultural upbringing of either of them;
(c)The health of either of them;
(d)The names used by either of them;
(e)Changes to the living arrangements for either of them that make it significantly more difficult for either of them to spend time with a parent.
Each parent is to have sole responsibility for making decisions concerning the children’s day to day care, welfare and development whilst they or either of them are in his or her care respectively.
The children live with the mother other than at those times when, pursuant to these Orders, they or either of them are spending time with the father.
Until 30 September 2011 the mother is restrained from changing the children’s place of residence to a place outside the Municipal area of the [P] Council district unless with the prior written consent of the father or by…

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 Colburn and Colburn

Details

AGLC: Colburn and Colburn [2009] FMCAfam 1142
Case: [2009] FMCAfam 1142
Decision Date: 9 November 2009

CaseChat Overview and Summary

In the Family Court of Australia, the case of Colburn and Colburn involved a dispute between the parents, concerning the parenting arrangements for their two children, [X] born in 2003 and [Y] born in 2006. The central issue was the allocation of parental responsibility, as well as the detailed schedule for the children’s time with each parent, including considerations for their education, health, and overall welfare. The parents also contested the conditions under which the children could be relocated outside their current municipal area and the circumstances under which the mother could take the children to Adelaide or other destinations.

The court had to decide on the allocation of parental responsibility, ensuring that both parents shared in making significant decisions regarding the children’s long-term care. This included determining the specific periods during which the father would have visitation rights, considering the children’s school schedules and holidays, and setting out detailed arrangements for the transition when the mother planned to relocate. The court also needed to address the parents’ obligations to facilitate communication between the children and the non-resident parent, as well as their duties in sharing information regarding the children’s health and education.

The court ruled that both parents would have equal shared parental responsibility for the children. They were required to consult each other on significant long-term issues and make joint decisions about the children's education, health, and cultural upbringing. The court set out a comprehensive schedule for the children’s time with the father, including specific periods during school terms and holidays, and conditions under which the mother could relocate. The father was also given visitation rights in Adelaide after the relocation, with detailed provisions for travel arrangements and costs. The court further stipulated the parents' obligations for communication and information sharing, ensuring that both parents remained informed and involved in the children’s lives. The parenting orders were to be supervised by a Family Consultant to ensure compliance.

Orders

Orders of the court

The mother and the father have equal shared parental responsibility for their children [X] born in 2003 (“[X]”) and [Y] born in 2006 (“[Y]”) (“The children”).

The parents are to consult each other in relation to any long term issues concerning [X] and [Y] and are to make a genuine effort to come to a joint decision concerning their care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:

(a) The education of either of them (both current and future);

(b) The religious and cultural upbringing of either of them;

(d) The names used by either of them;

(e) Changes to the living arrangements for either of them that make it significantly more difficult for either of them to spend time with a parent.

Each parent is to have sole responsibility for making decisions concerning the children’s day to day care, welfare and development whilst they or either of them are in his or her care respectively.

The children live with the mother other than at those times when, pursuant to these Orders, they or either of them are spending time with the father.

Until 30 September 2011 the mother is restrained from changing the children’s place of residence to a place outside the Municipal area of the [P] Council district unless with the prior written consent of the father or by Order of the Court, which restraint is conditional upon the father not relocating his place of residence to a place outside the Municipal area of the [P] Hastings Council district.

The children spend time with the father from the date of these Orders until 1 February 2010 as follows:

(a) On each alternate Monday from 3.30pm until 5.30pm commencing 28 September 2009;

(b) On each Tuesday and Wednesday from 3.30pm until 5.30pm;

(c) On each alternate weekend commencing Friday 2 October 2009 from 5.00pm Friday until 5.00pm Sunday with the child [Y] to be returned to the mother at 5.00pm on the Saturday and to spend time with her father again from 9.00am until 5.00pm on the Sunday;

(d)

For one week in the 2009/2010 Christmas school holidays after

4 January 2010 and to occur in the [P] area provided that the child [Y] only remains at the fathers home overnight for two (2) consecutive nights at the beginning and end of such week.

That between the period commencing 1 February 2010 and concluding on 24 September 2010 the children spend time with the father defined as but not limited to the following periods:

(a) Each alternate Monday from 3.30pm until 5.30pm commencing Monday 8 February 2010;

(b) On each Tuesday and Wednesday from 3.30pm until 5.30pm commencing 2 February 2010 until the week commencing Monday 3 May 2010 from which it is defined to be the first week of a two weekly cycle and in such first week from 3.30pm until 5.30pm on each of the Tuesday and the Wednesday and in the second week of the cycle commencing 10 May 2010 from 3.30pm on the Tuesday until 9.00am the following Wednesday and alternating in such fashion in subsequent weeks;

(d) For one week during the April New South Wales gazetted school holidays as agreed between the parents but in the absence of agreement from Sunday 11 April 2010 until Sunday 18 April 2010 provided that the child [Y] only remain at the fathers home overnight for four (4) consecutive nights in that period as agreed between the mother and the father but in the absence of agreement for the last four (4) consecutive nights of such holiday period and otherwise between 9.00am and 5.00pm, and with such overnight stays during the gazetted school holidays in July and September/October to extend to five (5) nights in the July holiday period as agreed between the parents but in the absence of agreement for the last five nights and for seven (7) nights in the September school holiday period.

From 25 September 2010 and until the mother relocates the children’s place of residence to Adelaide the father spend time with the children defined as but not limited to:

(a) During school terms each alternate Monday from 3.30pm until 6.00pm commencing 18 October 2010:

(b)

During school terms each Wednesday from 3.30pm until 9.00am the following Thursday morning commencing Wednesday

13 October 2010;

(c)

During school terms on each alternate weekend from 5.00pm on the Friday until 9.00am on the Monday commencing Friday

22 October 2010;

(d) For one half of the New South Wales gazetted school holiday periods at the end of Terms 1, 2 and 3 as agreed between the parents and in the absence of agreement the second half in even numbered years and the first half in odd numbered years and commencing with the September/October school holidays.

(e)

During the 2010/2011 Christmas School holiday period the children are to spend two (2) weeks with the father either consecutively or non consecutively as the parents agree but in the absence of agreement non consecutively, with the first week to incorporate Christmas and the second week to occur after

18 January 2011.

That the time the father spends with the children as set out above is suspended during the following periods and, during those periods the mother is permitted to take the children to Adelaide (or such other destination as she chooses):

(a) From 20 December 2009 until 4 January 2010;

(b) From 2 April 2010 until 10 April 2010;

(c) For a further period of two (2) weeks prior to 31 December 2010 (other than during gazetted New South Wales school holidays) provided that the mother give the father twenty one (21) days prior written notice of such periods and with the mother having the option of having one block period of two (2) weeks or two separate periods each of one (1) week provided that the latter are separated by at least three (3) weeks;

(d) For a period of two (2) weeks commencing on 4 January 2011;

(e) For a period of two (2) weeks prior to the mother relocating to Adelaide, and not to coincide with gazetted New South Wales school holidays upon the condition that the mother give twenty one (21) days prior written notice to the father of such periods and with the mother having the option of one block period of two (2) weeks or two periods of one (1) week provided that the latter are separated by at least three (3) weeks;

10.

Upon the mother relocating the children’s place of residence to Adelaide the father spend time with the children as agreed between the parents but in the absence of agreement as follows;

(a) For one (1) week of each of the shorter gazetted school holidays applicable in the State of South Australia, and in the absence of agreement the first week;

(b) For the gazetted school holidays applicable in the State of South Australia from 2011/2012 for two (2) weeks during such Christmas school holidays and in the absence of agreement between the parties then during January and similarly in each subsequent year in which the Christmas holidays commence in an odd numbered year, and for the Christmas school holidays commencing December 2012 and each alternate year thereafter between 23 December and 6 January in the relevant years;

(c) Subject to four (4) weeks prior notice in writing being given by the father to the mother, each second and fourth weekends during school terms in South Australia between 3.30pm on the Friday until 9.00am on the Monday Adelaide time;

11.

Prior to the mother relocating the children’s place of residence to Adelaide the father is restrained from taking the children or either of them to Sydney on more than one (1) occasion in each period of two (2) calendar months.

12.

Until the mother relocates the children’s place of residence to Adelaide implementation of these Orders, and subject to agreement by the parents to the contrary, is to be effected by the father collecting the children from the mother’s residence (or preschool or school as the case may be) at the commencement of the time which the father is to spend with the children or either of them and the mother is to collect the children from the father’s residence (or preschool or school as the case may be) at the conclusion of the time the father is to spend time with them or either of them.

13.

Upon the mother relocating the children’s place of residence to Adelaide implementation of these Orders is to be effected by the father collecting the children from the mother’s residence (or preschool or school as the case may be) at the commencement of the time which the father is to spend with the children or either of them and with the father to return the children to the mother’s residence (or preschool or school as the case may be) at the conclusion of the father’s time with the children, and at the expense of the father, save that upon the mother being in engaged in full time paid employment, the mother is to pay one half of the cost of the children’s economy return airfares from Adelaide to the place where the father proposes spending time with the children, but only within New South Wales, to be paid to the father upon the father providing evidence in writing to the mother of the cost of the children’s return airfares with the mother to pay such amount to the father within twenty eight (28) days of receiving such evidence.

14.

The parents enable the children or either of them to communicate with the other parent, at any reasonable time, by telephone, email or other medium, and that the parent with whom either child is from time to time do all acts and things and make all such arrangements as are required to enable such communication to take place unhindered.

15.

In the absence of agreement to the contrary between the parents, to the extent that it is necessary for them to do so, the parents communicate in relation to the children or either of them and all practical issues arising out of the implementation of these Orders by way of text message, email or postal written communication or facsimile transmission.

16.

Within fourteen (14) days of today the mother is to provide written notice to the father of all medical appointments in relation to [Y]’s various treatments and therapies and is to provide to the father within a reasonable time after receipt by her of any medical report or any written information concerning [Y]’s health and treatments.

17.

The mother is to authorise any of [Y]’s treating medical practitioners to provide any information to the father which the father may seek either by telephone or otherwise.

18.

The father is restrained from attending any medical appointments the mother may have arranged either for her or for her and [Y] to attend unless with the prior written agreement of the mother.

19.

Each parent is to give the other parent at least seven (7) days prior written notice of any proposed change of that party’s residential address, telephone number, email address and mailing address and within the same period of time is to supply particulars of any such proposed change.

20.

Each parent is to notify the other forthwith of any significant event occurring during that parents care of the children or either of them relating to the children’s health, welfare and development but in particular any admission to hospital, any accident or injury resulting in treatment from a Doctor or Ambulance Crew and any event or information in relation to [Y]’s health relating to her day to day care of which each parent should have knowledge in caring for her.

21.

Each of the parents do all acts and things necessary to authorise and require the Principal of any school attended by either of the children to provide to each of the parents, at the expense of that parent any document issued by the school relating to that child including but not limited to school reports, newsletters, invitations to school educational or sporting or cultural events and any other information.

22.

If either of the parents seeks advice in relation to either of the children from any school, health or welfare professional or other professional attended by either child, that parent is to notify the other parent of any pending appointment and is to provide to the other parent copies of any letters or reports subsequently received consequent to such appointment.

23.

Each of the parents is entitled to spend time and communicate with either child on the occasion of that child’s birthday and, in the absence of agreement, any inconsistent provisions of these Orders is suspended to enable the parent with whom the child is not living at the commencement of the day on which the birthday falls to spend time with both children from after school or 4.00pm in school holidays as the case may be, until 6.30pm the same day.

24.

Each of the parents is entitled to spend time and communicate with the children on the occasion of that parents birthday, and in the absence of agreement , any inconsistent provisions of these Orders is suspended to enable the parent with whom the child is not living at the commencement of the day on which the birthday falls, to spend time with both children on such birthday from after school or 4.00pm in school holidays as the case may be, until 6.30pm the same day.

25.

Any otherwise inconsistent provision in these Orders is suspended on the occasions of the Mother’s Day and Father’s Day weekends each year such that the children spend time with the father from 9.00am on Saturday until 6.00pm on Sunday of the Father’s Day weekend each year and that the children live with the mother between 9.00am on the Saturday and 6.00pm on the Sunday of the Mother’s Day weekend in each year.

26.

Until such time as [Y]’s grommets are removed both parties shall ensure that her head shall not be immersed in water during periods that [Y] is in their care and that if she is around water she should, at all times, be wearing a swimming cap and have ear putty.

27.

During the time the father spends with the children he shall ensure that he takes [X] to Ballet Eisteddfod practice, the dates of which include (but are not limited to) the weekends of 3-4 October, 28-29 November and 11-12 December 2009.

28.

In the event that the father is unable to spend time with the children during any of the periods referred to above he shall give the mother twenty one (21) days prior notice of his unavailability or, if the circumstances which cause him to be unavailable occur within that time he shall give the mother notice as soon as is reasonably practicable after he becomes aware of the event which causes his unavailability.

29.

Pursuant to section 65L of the Family Law Act 1975 (Cth) compliance with these parenting orders, as far as practicable, is to be supervised by a Family Consultant attached to the Newcastle Registry of the Family Court and such Family Consultant is to give both parents such assistance as is reasonably requested by either of them in relation to compliance with and the carrying out of the particular parenting Order.

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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