Cullin and Tarankiev - [2016] FamCA 263

FAMILY COURT OF AUSTRALIA

CULLIN & TARANKIEV

[2016] FamCA 263

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – where the mother seeks to relocate with the child to Sweden – where the child is now four years old – relocation permitted after July 2017

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Cox & Pedrana (2013) FLC 93-537

APPLICANT:

Mr Cullin

RESPONDENT:

Ms Tarankiev

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

3154

2013

DATE DELIVERED:

22 April 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

13 and 14 April 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Hetherington from Hetherington Legal

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

All previous Orders are discharged.

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

The child B, born … 2012, shall live with the mother.

IT IS ORDERED BY WAY OF FINAL ORDER THAT

The mother have sole parental responsibility for the major long term issues for the child, with such issues to include but not be limited to:
(a)       her education;
(b)       her religious and cultural upbringing; and
(c)       her health.
Except in the event of an emergency involving the child, the mother shall consult the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)the mother shall inform the father about the issue about which a decision which needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing; and
(b) the mother shall give the father fourteen (14) days to respond; and
(c)the mother shall consider the father’s views/response when coming to her decision; and
(d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the child whenever she is in his or her care.
At any time after 14 July 2017, the mother is at liberty to relocate the child to live with her in Sweden.
The Court requests that, from 14 July 2017 or such earlier time as the parents agree to in writing, the Australian Federal Police remove the name of the child, B, born … 2012 (a girl) from the Airport Watchlist at all points of international arrival and departure in Australia.
Until such time as the mother and the child depart Australia to live in Sweden pursuant to Clause (6) of this Order, the child shall spend time with her father at all times as may be agreed between the parties in writing but, failing agreement, as follows:
(a)commencing 25 April 2016:
(i)each Tuesday…

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 Cullin and Tarankiev

Details

AGLC: Cullin and Tarankiev [2016] FamCA 263
Case: [2016] FamCA 263
Decision Date: 22 April 2016

CaseChat Overview and Summary

This matter concerned orders made by Hogan J in the Federal Circuit and Family Court of Australia concerning the welfare of a child, B. The dispute involved the parents' arrangements for the child's residence, parental responsibility, and time with each parent, including the mother's proposed relocation of the child to Sweden.

The court was required to determine the final arrangements for the child's living situation, including who the child would live with and the allocation of parental responsibility for significant long-term decisions. Key issues included the extent of consultation required between the parents regarding these decisions, the specific times the child would spend with each parent, and the arrangements for the child's relocation to Sweden and subsequent time with the father. The court also addressed communication protocols between the child and the father after relocation and the parents' obligations to keep each other informed about the child's welfare and education.

By consent, the court ordered that the child, B, would live with the mother and that the mother would have sole parental responsibility for major long-term issues, including education, religious and cultural upbringing, and health. However, the mother was required to consult the father in writing regarding these decisions, providing him with 14 days to respond and considering his views before making a final decision. The court also made detailed orders regarding the child's time with the father, both before and after the mother's relocation to Sweden, and established communication requirements between the child and the father. The mother was also ordered to take steps to ensure recognition of the Australian orders in Sweden.

Orders

Orders of the court

All previous Orders are discharged.

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

The child B, born … 2012, shall live with the mother.

IT IS ORDERED BY WAY OF FINAL ORDER THAT

The mother have sole parental responsibility for the major long term issues for the child, with such issues to include but not be limited to:

(a) her education;

(b) her religious and cultural upbringing; and

Except in the event of an emergency involving the child, the mother shall consult the father about decisions to be made in the exercise of her sole parental responsibility as follows:

(a) the mother shall inform the father about the issue about which a decision which needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing; and

(b) the mother shall give the father fourteen (14) days to respond; and

(d) the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

Each party has responsibility for daily decisions about the day to day care, welfare and development of the child whenever she is in his or her care.

At any time after 14 July 2017, the mother is at liberty to relocate the child to live with her in Sweden.

The Court requests that, from 14 July 2017 or such earlier time as the parents agree to in writing, the Australian Federal Police remove the name of the child, B, born … 2012 (a girl) from the Airport Watchlist at all points of international arrival and departure in Australia.

Until such time as the mother and the child depart Australia to live in Sweden pursuant to Clause (6) of this Order, the child shall spend time with her father at all times as may be agreed between the parties in writing but, failing agreement, as follows:

(a) commencing 25 April 2016:

(i) each Tuesday afternoon: from the conclusion of the father’s working day until 6.30pm; and

(ii) each alternate Thursday: from the conclusion of the father’s working day until 6.30pm, with the first Thursday to occur on 5 May 2016; and

(iii) each alternate weekend from 4.00pm Saturday until 5.00pm Sunday, with the first weekend to occur on 30 April 2016; and

(b) commencing 11 June 2016:

(i) each Tuesday afternoon: from the conclusion of the father’s working day until 6.30pm; and

(ii) each alternate Thursday: from the conclusion of the father’s working day until 6.30pm; and

(iii) each alternate weekend: from 1.00pm Saturday until 5.00pm Sunday; and

(i) each Tuesday afternoon: from the conclusion of the father’s working day until 6.30pm; and

(ii) each alternate Thursday: from the conclusion of the father’s working day until 6.30pm; and

(iii) each alternate weekend: from 9.00am Saturday until 5.00pm Sunday; and

(d) commencing 2 January 2017:

(i) each Tuesday afternoon: from 3.00pm or the conclusion of school until 6.30pm; and

(ii) each alternate weekend: from 3.00pm, or the conclusion of school Friday until 5.00pm Sunday (except on Sunday, 22 January 2017 when the time shall conclude at 10.00 am), with the first weekend to occur on the weekend of 6 January 2017.

During the Easter 2017 school holidays the operation of Clause (8)(d) of this Order shall be suspended and the child shall spend time with her father as follows:

(a) from the conclusion of school on Friday, 31 March 2017 until 9.00am on Tuesday, 4 April 2017; and

(b) on 11 April 2017: from the conclusion of the father’s working day until 6.30pm; and

her time with her father pursuant to Clause (8)(d) of this Order shall recommence in the week commencing 24 April 2017.

10.

During the June/July 2017 school holiday period the operation of Clause (8)(d) of this Order shall be suspended and the child shall spend time with her father as follows:

(a) from 3.00pm, or the conclusion of school on Friday, 23 June 2017 until 6.30pm on Tuesday, 27 June 2017; and

(b) from 3.00pm or the conclusion of the father’s working day on Friday, 7 July 2017 until 6.30pm on Tuesday, 11 July 2017.

11.

Unless otherwise agreed, changeovers for the child’s time pursuant to Clauses (8), (9) and (10) of this Order shall occur as follows:

(a) when time with her father commences from school or daycare: with the father to collect the child from day care or school, and return her to the mother’s home at the conclusion of the time; and

(b) when the time with her father commences on a day when she is not otherwise at school or daycare: with the mother to deliver the child to the father at his home at the start of the time and the father to return the child to the mother at her home at the conclusion of the time.

12.

After the child relocates to live in Sweden, she shall spend time with her father as agreed between the parties, but, failing agreement:

(a) in Australia each year: for a period of not less than 21 consecutive days during the extended European summer school holiday period (occurring in June/July/August) on the following terms:

(i) the mother shall accompany the child to Australia until such time as the earlier of the mother advising the father in writing that the child has reached an age and level of maturity when she can travel as an unaccompanied minor or the child reaching the age of 15 years – after which she may travel as an unaccompanied minor; and

(ii) the mother shall be responsible for the cost of her own airfare and travel; and

(iii) the father shall be on leave from work for a period of not less than 14 days of this time; and

(iv) the mother shall notify the father of the child’s school term and holiday dates for the following year by no later than 31 December in each year; and

(v) the father shall give the mother no less than four (4) months’ notice in writing of the dates on which he proposes the child travel to Australia; and

(vi) the mother shall book the child’s return travel by air and notify the father of the cost of the child’s travel by providing him with a copy of the airline receipt and itinerary, and, within seven (7) days thereafter, the father shall reimburse to the mother one half of that cost by payment to the bank account nominated by the mother;

(b) in Sweden: at any other time during each year on the following terms:

(i) the father, and/or members of the child’s extended paternal family, shall give the mother not less than three (3) months’ notice of an intention to travel to Sweden and spend time with the child there; and

(ii) the father shall be responsible for his own cost of travel.

13.

The time the child shall spend time with her father pursuant to Clauses (12)(a) and (12)(b) of this Order shall, unless agreed by the parents occur as follows:

(a) in 2018: for five (5) consecutive nights followed by one (1) night with her mother, followed by five (5) consecutive nights followed by one (1) night with her mother, followed by five (5) consecutive nights followed by one (1) night with her mother, followed by three (3) consecutive nights; and

(b) in 2019: for six (6) consecutive nights followed by one (1) night with her mother, followed by six (6) consecutive nights followed by one (1) night with her mother, followed by seven (7) consecutive nights; and

(c) in 2020 and thereafter: for seven (7) consecutive nights followed by one (1) night with her mother, followed by seven (7) consecutive nights followed by one (1) night with her mother, followed by five (5) consecutive nights.

14.

After the child relocates to live in Sweden, she shall communicate with her father as agreed between the parties but on no less than three (3) occasions each week by Skype, telephone or other electronic communication at such times as may be agreed between the parties and, failing agreement, between 7.30am and 8.30am (Swedish time) each Tuesday, Thursday and Sunday, with both parties to do all things necessary to ensure that each has in place the technology necessary to enable Skype communication to occur.

15.

In order to facilitate the child’s communication with her father by Skype or telephone, her mother shall ensure the child is available to receive the telephone call or the Skype communication at the relevant time, arrange for her to telephone or Skype the father on the following night if, for any unforeseen circumstance, the child misses the telephone call or the Skype communication from her father and, to the extent appropriate for her age, ensure she has privacy during her communication with her father.

16.

The mother and father shall:

(a) keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change; and

(b) keep each other informed of the names, addresses and contact details of any medical or other health professionals who treats the child; and

(c) inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or illness suffered by the child; and

(d) keep the other informed of the details of any school, educational facility or extra-curricular activity provider attended by the child.

17.

By this Order, the mother and father authorise any day care, school, educational facility or extra-curricular activity provider attended by the child to provide to each parent, at that parent’s request and cost, all information about her educational progress and school related activities.

18.

Subject to the conditions imposed by the child’s school or extra-curricular provider, these Orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

19.

By this Order, the mother and father authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about her attendance and treatment.

20.

The mother shall provide to the father, within 28 days of her receiving the same, a copy of any school report she receives about the child’s progress at school.

21.

On no less than one occasion each year, the mother shall provide to the father a copy of any official school photograph in which the child appears.

22.

Neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of, the child and each shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the child and, failing their compliance with such a direction, shall remove the child from that environment immediately.

23.

By no later than 14 April 2017, the mother do all acts and things and take all reasonable steps to obtain:

(a) from a Court of competent jurisdiction in Sweden: recognition pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996 (“the Child Protection Convention”), of the Orders of the Family Court of Australia made on 22 April 2016; or

(b) from a Court of competent jurisdiction in Sweden: a declaration of enforceability in Sweden, pursuant to Article 26 of the Child Protection Convention, of the Orders of the Family Court of Australia made on 22 April 2016; or

(c) that she register in a Court of competent jurisdiction in Sweden, pursuant to Article 26 of the Child Protection Convention, the orders of the Family Court of Australia made on 22 April 2016; and

provide the father notice in writing of such declaration or recognition within seven (7) days of receiving the same.

24.

All outstanding applications are dismissed.

25.

The Independent Children’s Lawyer is discharged.

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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