FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & K | [2006] FMCAfam 309 |
| FAMILY LAW – Child – planned relocation of child aged 2 years and 9 months – parties separated when child aged 20 months – child has lived with mother since separation – mother wishes to relocate child’s place of residence from A S to C – father unable to leave A S – father seeks to restrain mother’s movement of child from A S – father seeks shared residence arrangement or in event mother leaves A S residency of the child – high level of conflict – allegations of family violence – assessment of parties’ competing proposals – assessment of adequacy of mother’s proposals for contact given child’s tender years – whether moratorium should be imposed on relocation to allow consolidation of relationship between father and child. |
| Family Law Act 1975 – ss.19, 60, 65, 68 Evidence Act 1995 – s.140 |
| U & U [2002] FLC 93-112 Marriage of JG & BG (1994) 18 Fam LR 255 Briginshaw v Briginshaw (1938) 60 CLR 336 Dearman v Dearman (1908)7CLR 549 C v J (1996) FLC 92-697 JG & BG 18 Fam LR 255 Centacare Central Queensland v GK (1998) FLC 92-821 B and B: Family Law Reform Act (1997) FLC 92-755 T & N [2001] FMCAfam 222 Bartholomew & Kelly Appeal number NA25 of 2000 delivered 14 August 2001 AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A: Relocation Approach (2000) FLC 93-035 Bolitho & Cohen (2005) FLC 92-224 D and S V (2003) FLC 93-137 Craven v Craven (1976) FLC 90-049 Fragomeli & Fragomeli (1993) FLC 92-393 |
| Applicant: | D D |
| Respondent: | K E K |
| File number: | DNM3040 of 2005 |
| Judgment of: | Brown FM |
| Hearing dates: | 30, 31 May and 1, 19 and 22 June 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr R |
| Solicitors for the Applicant: | P S |
| Counsel for the Respondent: | Ms D |
| Solicitors for the Respondent: | C & D |
ORDERS
That the father and the mother be jointly responsible for the long term care, welfare and development of the child of the relationship A Y K born 3 September 2003 (hereinafter referred to as “the child”).
That each parent be responsible for making decisions concerning the child’s day to day care, welfare and development when the child is in his or her care respectively.
That the said child live with the mother.
That the mother be permitted to live with the child in C in the State of V from after the child’s fifth birthday provided she and the child move to C prior to the end of December 2008 and the mother advises the father in writing of the date of her departure from A S 28 days prior to it occurring.
That until the child attains the age of five years the mother is restrained and an injunction issue restraining her from moving the place of residence of the child from an area…
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- D and K [2006] FMCAfam 309
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- [2006] FMCAfam 309
- Decision Date
CaseChat Overview and Summary
The court considered the welfare and best interests of the child as the paramount consideration in making its decisions. The court found that it was in the best interests of the child for both parents to have joint responsibility for the child's long-term care and development, with each parent making decisions regarding the child's day-to-day care when the child is in their care. The court ordered that the child live with the mother but permitted the mother to relocate with the child to another state after the child turns five years old, subject to certain conditions. The court also made detailed orders concerning contact between the father and the child, including supervised contact until the mother and child relocate, and specified contact arrangements after relocation. The court also made orders concerning the sharing of costs for travel, communication between the parties, and the avoidance of derogatory comments about each other in the presence of the child.
The court's orders reflect a balanced approach to the parenting arrangements, recognising the importance of both parents in the child's life while also considering the child's need for stability and continuity. The detailed contact arrangements aim to facilitate the father's ongoing involvement in the child's life while also accommodating the mother's desire to relocate. The court's orders also seek to promote cooperation and communication between the parties, which is essential for the child's well-being.
The court's orders in this case provide a comprehensive framework for the parents to follow in their parenting arrangements, with a focus on the child's best interests and welfare. The detailed contact arrangements and conditions on relocation aim to facilitate the father's ongoing involvement in the child's life while also accommodating the mother's desire to relocate. The court's orders also promote cooperation and communication between the parties, which is essential for the child's well-being.
Orders
Orders of the court
1.
That the father and the mother be jointly responsible for the long term care, welfare and development of the child of the relationship A Y K born 3 September 2003 (hereinafter referred to as “the child”).
2.
That each parent be responsible for making decisions concerning the child’s day to day care, welfare and development when the child is in his or her care respectively.
3.
That the said child live with the mother.
4.
That the mother be permitted to live with the child in C in the State of V from after the child’s fifth birthday provided she and the child move to C prior to the end of December 2008 and the mother advises the father in writing of the date of her departure from A S 28 days prior to it occurring.
5.
That until the child attains the age of five years the mother is restrained and an injunction issue restraining her from moving the place of residence of the child from an area within the municipal boundaries of the Town of A S without the written consent of the father.
6.
That prior to the mother’s departure from A S, as envisaged by Order (4) hereof, the father have contact to the child as follows:
(a) During the remainder of 2006 as follows:
Between the hours of 10.00am and 4.00pm on each of the following dates:
(i) 1 July; 3 July; 12 July; 14 July; 16 July; 26 July; 28 July; and 30 July;
(ii) 10 August; 12 August; 14 August; 24 August; 26 August; and 28 August;
(iii) 7 September; 9 September; 11 September; 21 September; 23 September; and 25 September;
(iv) 5 October; 7 October; 9 October; 14 October; 16 October; 18 October; 20 October; 22 October; 27 October; 29 October;
(v) 1 November; 3 November; 5 November; 15 November; 17 November; 19 November; 29 November and 30 November;
(vi) 2 December; 4 December; 13 December; 15 December; 17 December; 27 December; 29 December and 31 December;
and on any other days between the hours of 10.00am and 4.00pm when the father is in A S as agreed between the parties in consultation with the supervisor appointed pursuant to Order 10 hereof.
(b) Between 1 January 2007 and 30 June 2007 as follows:
(i) From 10.00am until 4.00pm on each Tuesday and Thursday in each alternate week;
(ii) From 10.00am until 4.00pm on each Saturday and Sunday in the other week of each fortnight;
(iii) At any other times as may be agreed between the parties.
(c) Between 1 July 2007 and 31 December 2007 as follows:
(i) From 3.00pm Friday until 5.00pm Saturday in each alternate week;
(ii) From 3.00pm Tuesday until 3.00pm Wednesday in the other week of each fortnight;
(iii) At any other times as may be agreed between the parties.
(d) Between 1 January 2008 and the mother’s permanent departure from A S with the child:
(i) From 3.00pm Friday until 6.00pm Sunday in each alternate weekend;
(ii) From 3.00pm Tuesday until 3.00pm the following Wednesday in the other week of each fortnight.
(iii) At any other times as may be agreed between the parties.
7.
That the mother be at liberty to travel interstate with the child for periods up to 21 days each year and during such period the contact provided in Order 6 hereof be suspended provided that the mother provides to the father 28 days notice of her intention to travel pursuant to this order and provides him with the dates and times of her departure and return to A S.
8.
That upon the child’s relocation to C the father have contact to the child as follows:
(a) For the whole of end of first term V school holiday in 2009 and each odd ending year thereafter;
(b) For the whole of the mid year V school holiday in 2009 and each year thereafter;
(c) For the whole of the end of third term V school holiday in 2010 and each even ending year thereafter;
(d) For half of each end of year V school holiday (the Christmas holiday) in each year being the first half of the holiday in 2009/2010 and each alternate year thereafter and the second half in 2010/2011 and each alternate year thereafter;
(e) In the event the mother relocates the child to C prior to 24 December 2008 the father will be entitled to a period of 14 days contact in the Christmas school holiday period of 2008/2009 at times to be agreed between the parties and failing agreement to be between 26 December 2008 and 9 January 2009.
9.
That in the event that the father lives within 50 kilometres of the child’s home upon her relocation to C the father have contact to the child in addition to the contact specified in Order 8 hereof as follows:
(a) On alternate weekends from after school on Friday until the commencement of school the following Monday;
(b) At any other times as may be agreed between the parties.
10.
That pursuant to section 65L of the Family Law Act 1975 that until the mother and child relocate to V the parenting orders made herein be supervised by a family and child counsellor or welfare officer to be nominated by the Director of Court Mediation at D.
11.
That pursuant to section 65LA of the Family Law Act 1975 the parties are directed to attend a course of mediation or a post-separation parenting program or other process of mediation or counselling as nominated by the Director of Court Mediation at D.
12.
That the reasons for judgment herein be provided to the Director of Court Mediation at D.
13.
That unless otherwise agreed between the parties in writing the child be exchanged at the beginning and end of each contact period specified by Order 6 at the A S Contact Centre.
14.
That in the event the parties are in the same location on the child’s birthday (3 September); Christmas Day; the father’s birthday and Father’s Day and the child would not otherwise be with the father pursuant to these orders the father shall have contact to the child on those occasions for a period of at least 6 hours at times to be agreed between the parties and failing agreement to be between 1.00pm and 7.00pm.
15.
That in the event the parties are in the same location on the child’s birthday (3 September); Christmas Day; the mother’s birthday and Mother’s Day and the child is with the father pursuant to these orders the mother shall have contact to the child on those occasions for a period of at least 6 hours at times to be agreed between the parties and failing agreement to be between 1.00pm and 7.00pm
16.
That upon the child’s relocation to C the father have contact to the child via telephone and any other electronic medium which may be available to the parties at times to be agreed between the parties and failing agreement to be at 6.00pm V time each Sunday and Thursday.
17.
That the father and mother share the costs equally of the necessary air travel for the child to undertake the contact as set out in Order 8 hereof with the father to book and pay for each flight in advance and provide the mother with 28 days written notice of the costs of the travel involved together with the details of the flight number and times of departure and arrival with the mother to reimburse the father one half of the costs of such travel 7 days prior to the time the child is scheduled to return to the mother’s care.
18.
That if the mother deems it necessary for the child to be accompanied for any period of contact as set out in Order 8 hereof she shall be responsible for paying all the necessary costs for the child to be so accompanied.
19.
That the father endeavour to obtain the cheapest available economy airfares for the purpose of these orders.
20.
That the mother authorise the principal of each school attended by the child from time to time to send to the father:
(a) A photocopy of each school report concerning the child;
(b) An order form for each school photograph of the child.
21.
That the father be at liberty to attend and visit the school or schools attended by the child from time to time for events, activities or functions routinely attended by parents including parent/teacher interviews.
22.
That the parties provide to the other at all times their respective residential and postal addresses and their electronic contact details including contact telephone number, both mobile, home landline and work landline and email addresses and inform the other of any changes of these details within 7 days of such change.
23.
That if either party intends to travel away with the child for more than 48 hours from their usual residential address they advise the other party of their date of departure and return and the address and telephone number of the place where the child will be staying during that period.
24.
That the father and mother each keep the other informed of any major illness or accident suffered by the child when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the child.
25.
That prior to the mother and child’s departure from A S pursuant to Order 4 hereof the parties exchange all information between them in writing regarding the child’s day to day needs by means of a communication book to be exchanged at the beginning and end of each contact period.
26.
That the mother keep the father informed of the names and addresses of all medical practitioners and other health professionals attended by the child from time to time and provide the father with details of all treatment and therapies received by the child from such person or persons and the father be at liberty to attend upon all such medical practitioners and therapists to enquire as to details of the treatment received by the child and as to the child’s progress and prognosis.
27.
That neither party denigrate the other or members of the other’s family in the presence or hearing of the child.
28.
That the application and response herein be otherwise dismissed.
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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