Danner and Kelso - [2012] FMCAfam 824

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DANNER & KELSO

[2012] FMCAfam 824

FAMILY LAW – Parenting matter – two and a half year old child – mother wishes to relocate with the child from Melbourne to northern New South Wales – father opposes the mother and child’s relocation and seeks that the child and the mother continue to live in Melbourne – found to be in the child’s best interests to relocate to live with his mother in northern New South Wales.

Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA

AMS v AIF (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Taylor v Barker (2007) 37 Fam FLR 461
Cowley & Mendoza [2010] FamCA 597
MRR v GR [2010] HCA 4

Applicant:

MR DANNER

Respondent:

MS KELSO

File Number:

MLC 4504 of 2011

Judgment of:

Bender FM

Hearing dates:

25, 26, 27, 28 and 29 June 2012

Date of Last Submission:

29 June 2012

Delivered at:

Melbourne

Delivered on:

10 August 2012

REPRESENTATION

Counsel for the Applicant:

Ms Theoharopoulou

Solicitors for the Applicant:

Lampe Family Lawyers

Counsel for the Respondent:

Ms Stavrakakis

Solicitors for the Respondent:

Victoria Legal Aid

ORDERS

The parties have equal shared parental responsibility for the child X born (omitted) 2010 (“X”).
The mother be permitted to relocate with X to northern

New South Wales
.
X live with the mother.
X spend time and communicate with the father as follows:
For the first 12 weeks immediately after relocation:
(a)The mother travel with X to Melbourne once every three weeks arriving in Melbourne on a Thursday and departing Melbourne the following Monday and for the father to spend time with X:
(i)from 4.00pm on the Thursday of the mother’s and X’s arrival until 4.00pm the following day; and
(ii)from 10.00am Saturday until 10.00am Monday.
After the first 12 weeks and thereafter until X commences school:
(b)The mother travel with X to Melbourne once every month arriving in Melbourne on the second Thursday of each month and departing Melbourne on the following Monday with the Father to spend time with X as per orders 4(a)(i) and 4(a)(ii) herein until February 2014 when X shall spend time with the father from 4.00pm on the Thursday of the mother and X’s arrival until 10.00am on the Monday.
(c)Time between the father and X pursuant to order 4(b) herein shall be suspended for the months of December 2012 and December 2014 when the father shall spend time with X at times to be agreed between the parties when the mother and X are in Melbourne between 20 and 26 December.
(d)When the father is spending time with X pursuant to orders 4(a) and 4(b) herein, the father shall collect X from and return X to the Sky Bus Depot at (omitted) Station unless otherwise agreed between the parties.
(e)The mother be responsible for the booking of and cost of flights and accommodation required to give effect to orders 4(a),(b) and (c) herein and she shall inform…

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 Danner and Kelso

Details

AGLC: Danner and Kelso [2012] FMCAfam 824
Case: [2012] FMCAfam 824
Decision Date

CaseChat Overview and Summary

The case of Danner and Kelso before the Federal Magistrates Court of Australia concerns a dispute between the parents of a two and a half year old child, X, over the mother's wish to relocate with the child from Melbourne to northern New South Wales. The father opposes the move and seeks for the child and the mother to continue living in Melbourne. The court was required to decide whether it was in the best interests of the child for the mother to be permitted to relocate with the child to northern New South Wales. The court considered factors such as the likely effect of any changes in the child's circumstances, the capacity of each of the child's parents to provide for the child's needs, and any other fact or circumstance that the court thinks is relevant. After considering the evidence of the parties and the family consultant's reports, the court found that it was in the child's best interests for the mother to be permitted to relocate with the child to northern New South Wales. The court made orders for the child to live with the mother and for the child to spend time and communicate with the father as follows: For the first 12 weeks immediately after relocation, the mother to travel with the child to Melbourne once every three weeks for the father to spend time with the child; and after the first 12 weeks and thereafter until the child commences school, the mother to travel with the child to Melbourne once every month for the father to spend time with the child. Once the child commences school, the child is to spend time with the father during each school term on one weekend each term in Victoria, and for half of all New South Wales school holiday periods in the State as agreed between the parties. The court also made orders for the mother to be responsible for booking flights and accommodation for the child's time with the father and for the father to keep the mother informed if he cannot exercise overnight time with the child. The court also made orders for the parents to communicate with each other and to ensure that the child maintains a relationship with the father and the extended paternal family.

Orders