Collins and Lawrence - [2010] FMCAfam 893

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COLLINS & LAWRENCE

[2010] FMCAfam 893

FAMILY LAW – Interim arrangements for parenting of children aged 7 & 5 – unilateral relocation – mother has moved children’s place of residence 75 kilometres in rural South Australia – mother has moved for employment reasons – father seeks return of children to locale where he lives – is this a situation of emergency – best interests – consideration of applicable section 60CC factors.

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Goode & Goode (2006) FLC93-286
MRR v GR [2010] HCA4
C & S [1998] FamCA 66
Morgan & Miles [2007] FamCA 1230
D and S V (2003) FLC 93-137
Godfrey v Saunders 208 FLR 287

Applicant:

MR COLLINS

Respondent:

MS LAWRENCE

File Number:

ADC 2718 of 2010

Judgment of:

Brown FM

Hearing date:

16 August 2010

Date of Last Submission:

16 August 2010

Delivered at:

Adelaide

Delivered on:

20 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr Collins - in person

Counsel for the Respondent:

Mr Boehm

Solicitors for the Respondent:

Andrew B Thiele & Co

ORDERS

UNTIL FURTHER OR OTHER ORDER:

The children [X] born in 2003 and [Y] born in 2005 live with the mother.
The father spend time with the children at times to be agreed between the parties and failing agreement:
(a)On alternate weekends during school terms from after school on Friday until 6:00pm the following Sunday commencing Friday 20 August 2010;
(b)For half of each school holiday period, the halves to be agreed between the parties and failing agreement to be the first half of each holiday; and
(c)At other times to be agreed between the parties.
The father collect the children at the beginning of each such period referred to in order (2) hereof at their school or such other location as agreed between the parties and the mother collect the children from the father at the end of each such period at the [K] Post Office or such other location as agreed between the parties.
The matter is fixed for final hearing before Federal Magistrate Brown on 16 & 17 December 2010 at 10:00am NOTING 2 days allowed.
That on or before 2 December 2010 the applicant father do pay the setting down fee or file an exemption certificate in respect thereof.
That the applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 18 November 2010.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 11 November 2010.
The Family Report to deal with the following matters:

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 Collins and Lawrence

Details

AGLC: Collins and Lawrence [2010] FMCAfam 893
Case: [2010] FMCAfam 893
Decision Date

CaseChat Overview and Summary

This case involves a dispute between Mr Collins (the father) and Ms Lawrence (the mother) regarding the interim arrangements for the care of their two children, [X] and [Y]. The parents have never been married but were in a committed relationship and lived together until their separation in early 2007. The primary concern in this case is the mother's recent decision to relocate with the children to a new town, [B], approximately 75 kilometres away from their previous residence in [K]. The father opposes this move and seeks orders that would see the children living predominantly with him and spending time with the mother on alternate weekends and during school holidays.

The legal issues in this case revolve around the application of the Family Law Act 1975, particularly sections 60CA, 60CC, 61DA, and 65DAA. The court must consider the best interests of the children as the paramount consideration and weigh the various factors set out in section 60CC. Additionally, the court must consider the presumption of equal shared parental responsibility and whether it should be applied in this case. The court also needs to assess the reasonableness of the mother's decision to relocate and the potential impact of this move on the children's relationship with their father.

In reaching its decision, the court considered the evidence provided by both parties, as well as the relevant legal principles and authorities. The court found that the best interests of the children would be served if they continue to live with their mother in [B], allowing her to maintain her employment and financial stability. The court also determined that it would not be appropriate to apply the presumption of equal shared parental responsibility in this case, given the tense and mistrustful relationship between the parties. The court concluded that the children would still be able to maintain a meaningful relationship with their father, despite the relocation, and that the move would not have an adverse effect on their wellbeing.

The court ordered that the children would live with their mother in [B], with the father having access to them on alternate weekends and during school holidays. The parties were also ordered to attend a family dispute resolution conference and prepare a family report to be presented at the final hearing. The final hearing was scheduled for December 2010, providing an opportunity for the court to revisit the situation if necessary.

Orders