Dashwood & Mallinder (No 3) - [2022] FedCFamC2F 523

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dashwood & Mallinder (No 3) [2022] FedCFamC2F 523

File number(s): DNC 88 of 2021

Judgment of: JUDGE YOUNG

Date of judgment: 27 April 2022

Catchwords: FAMILY LAW - parenting - concerning one child who is 19 months old - where the child lives with the mother and spends time with the father - where the mother seeks to relocate interstate with the child - where the father seeks increasing time with the child- court satisfied the mothers desire to relocate is genuine - court satisfied the mother does not wish to deprive the child of a relationship with the father - court satisfied the child's relationship with the father would be significantly impacted if the mother is permitted to relocate - court satisfied the mother should be permitted to relocate but not before the child turns 5 years of age.

Legislation:
Evidence Act 1995 (Cth) s 135

Family Law Act1975 (Cth) ss60B, 60CA, 60CC, 61DA, 65D, 65DAB, 65DAA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 7.11, 7.14

Cases cited:
AMS v AIF (1999) 199 CLR 160

Champness & Hanson [2009] FLC 93-407

G & C [2006] FamCA 994

Godfrey & Sanders (2007) 208 FLR 287

Mazorski v Albright (2007) 37 Fam LR 518

Morgan & Miles (2007) 312 FLR 114

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

Sayer & Radcliffe (2012) 48 Fam LR 298

Sigley & Evor (2011) 44 Fam LR 439

Starr & Duggan [2009] FamCAFC 115

Division: Division 2 Family Law

Number of paragraphs: 149

Date of hearing: 31 January – 2 February 2022

Place: Darwin

Counsel for the Applicant: Ms Murray

Solicitor for the Applicant: Mr Bocock of Northern Territory Legal Aid Commission

Counsel for the Respondent: Ms Morgan

Solicitor for the Respondent: Ms Powell of Powell & Co. Solicitors
ORDERS

DNC 88 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DASHWOOD

Applicant

AND:
MR MALLINDER

Respondent

ORDER MADE BY:

JUDGE YOUNG

DATE OF ORDER:

27 APRIL 2022

THE COURT ORDERS THAT:
1.All previous orders be discharged.

Parental Responsibility
2.The parents Ms Dashwood (“the mother”) and Mr Mallinder (“the father”) (collectively “the parents”) are to have equal shared parental responsibility for the child X born in 2020 (“the child”).

Living Arrangements
3.The child live with the mother in Darwin or City J until the child turns five years of age and thereafter the mother be permitted to relocate the residence of the child to Town D in Victoria.
4.The child is to spend time with the father as agreed with the mother, but failing agreement as follows:
(a)from the date of these orders until the child turns two years of age, on Mondays and Wednesdays from 1:30 PM to 4:30 PM and the first three weekends of each month from Saturday 9 AM to 2 PM and from Sunday 9 AM to 2 PM;
(b)from when the child turns two years of age until January 2023,…

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 Dashwood & Mallinder (No 3)

Details

AGLC: Dashwood & Mallinder (No 3) [2022] FedCFamC2F 523
Case: [2022] FedCFamC2F 523
Decision Date

CaseChat Overview and Summary

This case involves a dispute between the parents of a child, X, about the child's residence and the arrangements for the child to spend time with the father. The child is presently 19 months old and lives with the mother in Darwin. The mother seeks to relocate to Town D in Victoria. The father proposes that the mother and child continue to reside in Darwin and for the child to spend increasing time with him, including overnight time. Alternatively, the father proposes that the mother be permitted to relocate to Town D with the child when the child turns five years of age. The court accepted the mother's motivation to relocate was genuine and not to deprive the child of a relationship with his father. The court accepted that the mother's desire to relocate was consistent with her fundamental right of freedom of movement. However, the court was satisfied that the mother's proposal to relocate immediately with the child would likely deprive the child of a meaningful relationship with the father. The court was satisfied that the father had made genuine enquiries about employment in Town D and the surrounding region as a professional and found that there was no employment available. The court was satisfied that it was reasonably practicable for the father to relocate to Melbourne but not to Town D or the surrounding region. The court was satisfied that the father's proposal to permit the mother to relocate with the child when the child turns five years of age was in the best interests of the child and is reasonably practicable. The court ordered that the child live with the mother in Darwin until the child turns five years of age and thereafter the mother be permitted to relocate the residence of the child to Town D in Victoria. The court ordered the child to spend time with the father as agreed with the mother, but failing agreement as follows: from the date of these orders until the child turns two years of age, on Mondays and Wednesdays from 1:30 PM to 4:30 PM and the first three weekends of each month from Saturday 9 AM to 2 PM and from Sunday 9 AM to 2 PM; from when the child turns two years of age until January 2023, on Mondays and Wednesdays from 1:30 PM to 4:30 PM and alternate weekends of from Saturday 9 AM to 5 PM and from Sunday 9 AM to 5 PM; from January 2023 until the child turns three years of age, on Mondays and Wednesdays from 1:30 PM to 4:30 PM and alternate weekends of from Saturday 12 PM to Sunday 5 PM; from when the child turns three years of age, on Mondays and Wednesdays from 1:30 PM to 4:30 PM and alternate weekends of from Friday 5 PM to Sunday 5 PM; from when the mother relocates to Town D and the father remains living in Darwin, from when the child turns five years of age, for the first two weeks of the Christmas holiday beginning December 2025, including Christmas 2025, and thereafter half of the school holidays with the parents to share equally in the cost of travel for the child.

Orders