Dudney & Lisson

Case [2021] FamCA 248


FAMILY COURT OF AUSTRALIA

Dudney & Lisson [2021] FamCA 248

File number(s): PAC 1895 of 2018
Judgment of: FOSTER J
Date of judgment: 29 April 2021
Catchwords:

FAMILY LAW – CHILDREN – best Interests – relocation – where application by mother to relocate the child’s primary residence from Sydney to a town on the North Coast of NSW – where orders made by consent for equal shared parental responsibility – where orders made by consent for the child to live with the mother – where parties largely agree on orders if the mother is permitted to relocate or not – where consideration of applicable principles – where consideration of the child’s best interests – where orders made allowing the mother to relocate the child’s residence at the end of the current school year.

FAMILY LAW – PRACTICE AND PROCEDURE – DISQUALIFICATION – where application for disqualification on the basis of apprehended bias – where discussion of applicable principles – where basis for application not made out – where application dismissed

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 65DAA, 65DAA(5)  
Cases cited:

Adamson [2014] FamCAFC 232

AMS v AIF (1999) 199 CLR 160

Antoun v The Queen (2006) 224 ALR 51

Asher & Wilkinson [2020] FamCAFC 44

B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92-755

Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577

D & SV (2003) FLC 93-137

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Franklyn & Franklyn [2019] FamCAFC 256

G & C [2006] FamCA 994

Malcolm & Monroe and Anor (2011) FLC 93-460

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Morgan & Miles (2008) 38 Fam LR 275; (2007) FLC 93-343

Reeves & Grinter [2017] FamCAFC 19

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128

Sayer & Radcliffe [2012] FamCAFC 209

Taylor & Barker (2007) 37 Fam LR 461

Number of paragraphs: 169
Date of last submission/s: 29 March 2021
Date of hearing: 20, 21 and 22 January 2021
Place: Parramatta
Counsel for the Applicant: Ms Gillies SC
Solicitor for the Applicant: Mark Macdiarmid Family Law Specialist
Counsel for the Respondent: Mr Schonell SC with him Ms Druitt
Solicitor for the Respondent: John R Quinn & Co

ORDERS

PAC 1895 of 2018
BETWEEN:

MR DUDNEY

Applicant

AND:

MS LISSON

Respondent

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

21 JANUARY 2021 AND 29 APRIL 2021

ORDERS MADE ON 21 JANUARY 2021 THAT:

1.The Application for disqualification is dismissed.

ORDERS MADE ON 29 APRIL 2021 THAT:

BY CONSENT:

2.That the father and the mother each have equal shared parental responsibility for the child X born … 2015 (“the child”).

3.That the child live with the mother.

IT IS FURTHER ORDERED:

4.That the mother be permitted to relocate the child’s residence to B Town area at the conclusion of the 2021 school year.

5.That the child spend time with the father until the commencement…

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AGLC
Dudney & Lisson [2021] FamCA 248
Case
[2021] FamCA 248
Decision Date

CaseChat Overview and Summary

The case involved Mr. Dudney (the applicant father) and Ms. Lisson (the respondent mother) concerning parenting orders for their child, X. The primary dispute centred on the mother's application to relocate the child's primary residence from Sydney to a town on the North Coast of New South Wales. The parties had previously made consent orders for equal shared parental responsibility and for the child to live with the mother. An application for the court's disqualification on the grounds of apprehended bias was also before the court.

The court was required to determine two principal issues: firstly, whether the mother should be permitted to relocate the child's residence to the B Town area, and secondly, the specific time the child would spend with the father, both in the event of a relocation and if relocation were not permitted. The court also had to consider the application for disqualification of the judge.

In relation to the disqualification application, the court found that the basis for the application was not made out and dismissed it. On the substantive parenting issues, the court applied the principles governing parenting proceedings under the *Family Law Act 1975* (Cth), with the paramount consideration being the best interests of the child, as enshrined in section 60CA. The court acknowledged that while the child's best interests are paramount, the legitimate interests and desires of the parents are also relevant considerations. The court considered expert reports and the specific circumstances of the child and the parents.

By consent, the court made orders reflecting equal shared parental responsibility and that the child live with the mother. Crucially, the court ordered that the mother be permitted to relocate the child's residence to the B Town area at the conclusion of the 2021 school year. Detailed orders were then made by consent regarding the time the child would spend with the father, both during the transition period until the commencement of the 2022 school year and thereafter, with specific provisions for school terms, holidays, birthdays, and communication.

Orders

Orders of the court

PAC 1895 of 2018

BETWEEN:

MR DUDNEY

Applicant

AND:

MS LISSON

Respondent

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

21 JANUARY 2021 AND 29 APRIL 2021

ORDERS MADE ON 21 JANUARY 2021 THAT:

1. The Application for disqualification is dismissed.

ORDERS MADE ON 29 APRIL 2021 THAT:

BY CONSENT:

2. That the father and the mother each have equal shared parental responsibility for the child X born … 2015 (“the child”).

3. That the child live with the mother.

IT IS FURTHER ORDERED:

4. That the mother be permitted to relocate the child’s residence to B Town area at the conclusion of the 2021 school year.

5. That the child spend time with the father until the commencement of the school year in 2022 as follows:

(a) During school terms from start of term 2, 2021 each alternate weekend from after school on Friday until the start of school on Monday commencing on the second weekend of each term and for the purpose of this order the father will collect the child from school or at 3.00 pm from the mother’s residence if a non-school day at the commencement of time and deliver the child to school or at 9.00 am to the mother’s residence at the conclusion of time if a non-school day.

(b) During school term from after school on Thursday to before school Friday each week.

(c) For periods of five nights as agreed in each school holiday period and failing agreement, for the first five nights commencing from the first day of each gazetted holiday period, with the mother delivering the child to the father’s residence at the commencement of time and the father delivering the child to the mother’s residence at the conclusion of time.

(d) On the Father’s Day weekend from the conclusion of school on the Friday of the Father’s Day weekend until the commencement of school the following Monday.

(e) For a period of not less than three hours on the child’s birthday as agreed in writing or failing agreement from the conclusion of school until 6.15 pm (in the event the child’s birthday falls on a school day) or from 1.00 pm to 4.00 pm in the event the child’s birthday falls on a weekend with non-school changeovers to be at the mother’s residence.

(f) From 12.00 pm on 23 December 2021 until 12.00 pm on 30 December 2021 and from 7 January to 15 January and 21 January to 27 January, with changeover to occur by agreement between the parties but failing agreement the mother shall deliver the child to the father’s residence at the commencement of time and the father shall deliver the child to the mother’s residence at the conclusion of time.

(g) That the child’s time with the father shall be suspended on the Mother’s Day weekend.

(h) At such further time as the parents may from time to time agree between themselves in writing.

6. That the child spend time with the father from the commencement of the 2022 school year as follows:

(a) Each fourth weekend during school terms in Sydney commencing at 7.00 pm on Friday and concluding at 5.00 pm on Sunday on a weekend agreed between the parents and failing agreement commencing on the fourth weekend of each term with changeovers to take place at the father’s home.

(b) Commencing on the second weekend of each school term and then each fourth weekend thereafter in B Town area commencing after school on Friday and concluding at the commencement of school on Monday on a weekend agreed between the parents and failing agreement commencing on the second weekend of each term, and for the purpose of this order the father will collect the child from school at the commencement of time and deliver the child to school at the conclusion of time.

(c) Such other weekends in B Town area upon the father giving the mother four weeks' notice of his intention to spend time with the child to a maximum of one extra weekend per term.

(d) On Father’s Day weekend in accordance with order 6(a).

(e) For a weekend in accordance with order 6(b) on the weekend closest to the child’s birthday in B Town area.

(f) That the father’s time with the child be suspended on the Mother’s Day weekend.

(g) For one half of the Term 1, 2 and 3 school holidays as agreed between the parents and failing agreement the child shall spend time with the father during the first half of the Term 1, 2 and 3 school holidays from 12.00 pm on the first day of the school holidays until 12.00 pm on the midpoint day of the school holidays and changeover shall occur at Sydney Domestic Airport at the commencement of time and at either C Town Airport or D Town Airport at the conclusion of time.

(h) During the Term 4 school holiday period the child spend time with the parents as follows:

(i) Commencing in 2022 and each even ending year thereafter:

A. With the mother from after school on the last day of term until 12.00 pm on 27 December with changeover to occur at Sydney Domestic Airport at the conclusion of time;

B. With the father for a 17 night period from 12.00 pm on 27 December until 12.00 pm on 13 January with changeover to occur at either C Town Airport or D Town Airport at the conclusion of time; and

C. With the mother from 12.00 pm on 13 January until the commencement of school term.

(ii) Commencing in 2023 and each odd ending year thereafter:

A. With the father from 12.00 pm on the first day of the school holidays until 12.00 pm on 27 December with changeover to occur at Sydney Domestic Airport at the commencement of time and at either C Town Airport or D Town Airport at the conclusion of time;

B. With the mother for a 17 night period from 12.00 pm on 27 December until 12.00 pm on 13 January with changeover to occur at Sydney Domestic Airport at the conclusion of time; and

C. With the father from 12.00 pm on 13 January until 12.00 pm on the day before the commencement of school term with changeover to occur at either C Town Airport or D Town Airport at the conclusion of time.

(iii) At such further time as the parents may from time to time agree between themselves in writing.

Collection/return of the child during time spent with father

7. That changeover occur by agreement between the parties, but failing agreement as follows:

(a) That except as otherwise provided by these orders, when the child is spending time with the father in Sydney the mother shall deliver the child to and collect the child from the father’s residence at the commencement and conclusion of the child’s time with the father.

(b) That except as otherwise provided by these orders, when the child is spending time with the father in B Town the mother shall deliver the child to and collect the child from the father at C Town Airport at the commencement and conclusion of the child’s time with the father.

Child’s extra-curricular activities and/or sporting activities

8. That in relation to the child’s extra-curricular activities and/or sporting activities:

(a) The mother shall provide the father with the details of the child’s extra- curricular activities.

(b) The father shall deliver and collect the child to and from any of his curricular activities or sporting activities as agreed upon between the parents when the child is spending time with the father.

(c) That except as agreed between the parents in writing each parent is hereby restrained from enrolling or registering the child in any sporting or extra- curricular activities that would take place or be scheduled to take place when the child would be in the care of the other parent under these orders.

Telephone communication

9. That the father have telephone and FaceTime communication with the child at all reasonable times and that each parent cause the child to telephone the other parent at least twice per week when the child is on holidays with that parent.

Forwarding correspondence/SMS/gifts, etc to the child

10. That the father be at liberty to forward SMS, letters, email, mail and any items to the child and that the mother hand same to the child.

School reports, circulars, etc

11. That the mother and father be at liberty to approach the child’s school to obtain copies of all school reports, circulars and any other document relating to the child’s schooling.

School functions, activities, sporting events, etc

12. That each parent be at liberty to attend the child’s school functions, activities and events that allow for parental attendance including but not limited to concerts, plays, sporting, open days, excursions, fetes, speech nights, assemblies, parent/teacher interviews, canteen duties and social functions.

Telephone number and address where the child will be living

13. That the father and the mother each provide to the other in writing a telephone number and address during periods when the child lives with or spends time with either parent during holiday time at least seven days prior to the holiday time.

Change of residence

14. That in the event that either parent moves from where they live that parent will notify the other two weeks prior to such move of any change of address and telephone numbers where that parent can be reached.

Child’s medical information

15. (a) That each parent inform and keep the other informed at all times of the child’s health and/or health related issues, and in the event that the child is required to undertake a medical procedure, consult with the other as soon as is practicable.

(b) That each parent inform the other in writing as soon as practicable of any specialist medical appointments (but not general medical general practitioner appointments) including appointments with any dentist or other health professional and provide the names, contact telephone numbers and addresses of all treating health care professionals attended by the child.

(c) That each parent provide to the other a copy of any report prepared by any such specialist medical consultant or relevant health professional within seven days of receipt of same.

(d) That in the event that the child is involved in a medical emergency such parent shall notify the other immediately and provide details of the health care professional or medical facility that the child attends.

Non-denigration

16. That neither parent denigrate the other or members of the other’s family to the child or in the presence of the child or at all.

Removal of the child from the Commonwealth of Australia

17. That pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) each parent be at liberty to travel outside of the Commonwealth of Australia with the child during the time that that child is living with or spending time with that parent (or for such other period as agreed between the parents in writing) provided that:

(a) the child is not to be taken outside the Commonwealth of Australia into a country or jurisdiction that is:

(i) not a convention country listed in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986;

(ii) classified by the Department of Foreign Affairs and Trade as “Level 2 – Exercise a high degree of caution” or higher at the date of travel;

(b) the parent intending to travel with the child provides to the other four weeks written notice of his or her intention to travel;

(c) the parent intending to travel with the child provides to the other four weeks prior to such travel a detailed itinerary of the proposed travel (including details of the departure and return dates, destinations, flight numbers, methods of travel and where the child will be staying, emergency contact numbers, copies of documents sufficient to demonstrate that the child and the travelling parent has paid for return tickets, and at least one telephone contact number for the other parent to communicate with the child during the absence); and

(d) the travelling parent will ensure that the child is fully vaccinated for the destination(s) of travel.

Retention of the child’s travel documents

18. (a) That the child’s travel documents shall be held by the mother.

(b) That the mother release the child’s travel documents to the father at least 14 days prior to any travel pursuant to these orders and the father return such travel documents to the mother within 14 days after the travel has concluded.

(c) That in the event that the travel documents of the child has expired, or will expire within six months prior to the proposed date of travel, the mother and the father shall make an application for issue of further Australian travel documents for the child under the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision) and the father and mother shall do all acts and things and sign all documents necessary to ensure that the travel documents are renewed.

BY CONSENT:

The court notes and the parties agree:

19. That where these orders require the parties to evidence their agreement in writing or provide written notice the sending of a SMS or email to the other parent is sufficient to discharge that obligation.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The application for disqualification is dismissed.Background The father at the time of trial was 49 years of age and the mother aged 44. The relationship of the parties was relatively brief in that they did not cohabit together at any time. However, as a consequence of their relationship the child X was born in 2015. At the time of trial X was about five and a half years of age. At trial the father relied upon the following documents:(a)his primary consolidated trial affidavit filed 23 December 2020;(b)his supplementary trial affidavit filed 15 January 2021. At trial the mother relied upon her primary consolidated trial affidavit filed 22 December 2020. Otherwise, the Court received into evidence the following primary documents:(a)the Child Responsive Program Memorandum from a family consultant dated 11 July 2018: Exh “B”.(b)the initial Chapter 15 Single Expert Report dated 14 August 2019: Exh “C”.(c)the supplementary Chapter 15 Single Expert Report dated 18 January 2021:Exh “C”. Primarily the issues for determination were:(a)Whether the mother could relocate the residence of the child to B Town area on the north coast of NSW.(b)The time that the child would spend with the father in the event of relocation or the time that the child would spend with the father in the event that relocation was not permitted.RELOCATION CASES As to the concept of “relocation” the Full Court said in Asher & Wilkinson [2020] FamCAFC 44:39.We pause here to observe that the task before the primary judge was to determine what parenting orders were in the child’s best interests. It was not to determine the location in which the mother was “permitted” to live. The use of that phrase in the context that it was used tends to focus on the mother having to justify to the Court where she wishes to live and obtain its approval. The use of that phrase obscures, if not overrides, the mother’s undoubted right to live where she chooses as explained in AMS v AIF (1999) 199 CLR 160 at [92] and [191] and U v U (2002) 211 CLR 238 (“U v U”) at [37], [137] and [176]. Parenting proceedings including relocation cases are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. Whilst that is the paramount consideration, it is not the only consideration. In AMS v AIF (1999) 199 CLR 160, his Honour Justice Kirby said: [144]… a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. …

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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