DENHAM & NEWSHAM - [2020] FamCA 271

FAMILY COURT OF AUSTRALIA

DENHAM & NEWSHAM

[2020] FamCA 271

FAMILY LAW – CHILDREN – With whom a child lives – International relocation – Where the mother seeks to relocate with the child to Belgium in March 2022 and for the child to spend block time with the father during school holidays in Belgium on three occasions each year and on one occasion each alternate year in Australia – Where the father seeks that the child remain living with the mother in Sydney and that he spend gradually increasing time with the child such that the child lives in a shared care arrangement by the time he is 12 – Where the child has meaningful relationships with both parents but the mother is the child’s primary attachment – Where the mother has always fostered the child’s relationship with the father and the paternal family – Where requiring the mother to remain in Australia is likely to affect her parenting capacity – Where the child’s best interests will be met by him being able to live with the mother and, if she elects to do so, for the child to live with her in Belgium from March 2022 – Where the father will spend regular time with the child whilst the child remains living in Australia – Where, upon the mother relocating, the father will have regular telephone time and will spend time with the child on three occasions each year in Belgium and one occasion each alternate year in Australia.

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Presumption of equal shared parental responsibility – Where the parents have demonstrated an ability to communicate and make decisions, including major long term decisions – Where the presumption is not rebutted – Where the parents will have equal shared parental responsibility.

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Babcock & Waddell [2019] FamCAFC 129
Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015} FLC 93-637
CDJ v VAJ (No 1) (1998) 197 CLR 172
Godfrey & Sanders [2007] FamCA 102
Hepburn & Noble (2010) FLC 93-438
Sigley & Evor (2011) 444 Fam LR 439
M & M (1988) 166 CLR 69
McCall & Clark (2009) 93-405
Taylor & Barker (2007) FLC 93-345
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Mr Denham

RESPONDENT:

Ms Newsham

FILE NUMBER:

SYC

5428

2018

DATE DELIVERED:

23 April 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Carew J

HEARING DATE:

10 - 12 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tovey

SOLICITOR FOR THE APPLICANT:

P Williams & Company Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ford

SOLICITOR FOR THE RESPONDENT:

Nolan Lawyers

IT IS ORDERED THAT:

All previous parenting orders and parenting plans be discharged.
Mr Denham and Ms Newsham (“the parents”) have equal shared parental responsibility for major long terms issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) in relation to the child, X born ……

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 DENHAM & NEWSHAM

Details

AGLC: DENHAM & NEWSHAM [2020] FamCA 271
Case: [2020] FamCA 271
Decision Date: 23 April 2020

CaseChat Overview and Summary

This matter concerned an application by the mother for international relocation of the child to Belgium, with the father seeking the child to remain in Sydney and for a gradual transition to a shared care arrangement. The child had significant relationships with both parents, with the mother identified as the primary attachment figure. The mother had consistently facilitated the child's relationship with the father and his family.

The court was required to determine whether the child's best interests would be served by permitting the mother to relocate to Belgium with the child, and to establish a parenting arrangement that accommodated the relocation. A further issue was whether the presumption of equal shared parental responsibility applied and, if so, whether it was rebutted.

Carew J found that requiring the mother to remain in Australia would likely impair her parenting capacity. The court concluded that the child's best interests would be met by allowing the mother to relocate to Belgium with the child from March 2022, and that the father would have regular time with the child while in Australia, and thereafter, three occasions each year in Belgium and one occasion each alternate year in Australia. The presumption of equal shared parental responsibility was not rebutted, given the parents' demonstrated ability to communicate and make decisions together.

Orders