Daniels & Townsend - [2022] FedCFamC2F 553

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Daniels & Townsend [2022] FedCFamC2F 553

File number(s): MLC 6156 of 2021

Judgment of: JUDGE FORBES

Date of judgment: 6 May 2022

Catchwords: FAMILY LAW – PARENTING – relocation – current shared care arrangement – career and study opportunities for mother – child’s connection to Victoria – evaluation of competing proposals – impact of relocation on child – child’s best interests

Legislation: Family Law Act 1975 (Cth), s 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 121

Cases cited:
Adamson & Adamson [2014] FLC 93-622

AMS v AIF [1999] FLC 92-852

Bell & Nahos [2016] FamCAFC 244

KB & TC [2005] FLC ¶93-224

Franklyn and Franklyn [2019] FamCAFC 256

Mazorski & Albright [2007] FamCA 520

Morgan & Miles [2007] FamCA 1230

Palmer & Hammer (No.2) [2011] FamCAFC 196

Paskansky & Paskansky [1999] FLC ¶92-878

Sayer & Radcliffe & Anor [2012] 48 Fam LR 298

Tabac & Kelmer [2016] FCCA 1937

U v U [2002] HCA 36

Wilburn & Wilburn [2019] FCCA 2131

Division: Division 2 Family Law

Number of paragraphs: 292

Date of hearing: 13 – 15 December 2021

Place: Melbourne

Counsel for the Applicant: Ms Mansfield

Solicitor for the Applicant: Coote Family Lawyers

Counsel for the Respondent: Ms Teicher

Solicitor for the Respondent: Aitken Street Family Law

ORDERS

MLC 6156 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DANIELS

Applicant

AND:
MS TOWNSEND

Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

6 MAY 2022

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the child, X, born in 2015 ("the child").
2.The child live with the Mother and Father until the end of the 2022 school year as follows:
(a) On a two-week rotating basis during school terms, with the Father:
(i)In week 1, from the conclusion of school on Thursday (or 4pm on a home- school day or a non-school day) until the commencement of school Monday (or 4pm on a home-school day or a non-school day);
(ii)Week 2, from the conclusion of school on Wednesday (or 4pm on a home- school day or a non-school day) until the commencement of school Friday (or 4pm on a home school day or non-school day).

(b) With the Mother at all other times during school terms not specified in Order 3(a).

3.From the next Monday following the conclusion of the 2022 school year, the child lives with the parties on an equal shared week-about care basis with changeovers occurring at the conclusion of school every Monday (or 3pm if a non-school day), with the same arrangements to continue during all school holiday periods.

Special Occasions
4.Notwithstanding any other orders, the child spends time with the parties on special occasions as agreed in writing and in default of agreement as follows:
(a)From the Christmas period:
(i)12pm on Christmas Eve until 2pm on Christmas Day in odd numbered years with the Applicant Father and in even numbered years with the Respondent Mother and;
(ii)From 2pm on…

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 Daniels & Townsend

Details

AGLC: Daniels & Townsend [2022] FedCFamC2F 553
Case: [2022] FedCFamC2F 553
Decision Date

CaseChat Overview and Summary

The case of Daniels and Townsend involves a parenting dispute concerning X, a seven-year-old child. The primary issue before the Court was whether X should be permitted to relocate interstate to Canberra with her mother, who opposed the move. The Court also had to determine the ongoing care arrangements for X in Melbourne and, if the relocation was permitted by the Court, the arrangements for X’s time with the father. The Court found that the best interests of X were more likely to be met if she remained in Melbourne. The Court found that X had developed settled routines, had a relationship with his father and was a happy, healthy child who was meeting all milestones in the current environment. The Court found that the mother's focus was on her relationship with Mr K and that she had given insufficient forethought and planning to the Canberra move or its implications for X’s sense of stability. The Court found that any relocation to Canberra would have important implications for X’s adjustment to changed living arrangements, home relationships and her schooling and social arrangements. The Court also found that X’s capacity to tolerate and adapt to multiple changes to her environment remained largely untested. The Court found that the evidence did not persuade it that the position at the Employer M would provide Ms Townsend with such a significantly enhanced income or improved career prospects to warrant dislodging X from her current environment. In terms of ongoing support for X, the Court was not persuaded that her best interests would be served by relocation to Canberra. The support available to X in Melbourne from her school, school friends, peers, relatives, pets and the like could not be replicated quickly, or perhaps ever, if she moved to a new city. The Court found that it was not in X’s best interests that so much be left to chance. The Court found that the mother's allegations of controlling and coercive behaviour, while accepted as subjective feelings, were somewhat exaggerated and that she was prepared to gild the lily to present Mr Daniels as a menacing character in order to secure her preferred outcome. The Court found that the effect of relocation would be contrary to the child’s wishes. The Court found that there was a significant likelihood that X would not be able to maintain a meaningful relationship with the father if relocation occurred. The Court found that X currently enjoyed a meaningful relationship with each of the parents and that relocation of the child to live with one parent interstate would make that relationship fragile when it need not be. The Court found that the evidence did not persuade it that relocation was necessary to protect X from physical or psychological harm or from being subjected to or exposed to family violence. The Court found that the best interests of the child would be served by the shared parenting arrangements she currently enjoyed. The Court found that there was nothing about either party’s parenting capacity which disqualified them from continuing to play a significant role in X’s future.

Orders