E and R - [2003] FMCAfam 55

FEDERAL MAGISTRATES COURT OF AUSTRALIA

E & R

[2003] FMCAfam 55

FAMILY LAW – CHILDREN – Proposal to remove child interstate – parenting orders – contact order – planned relocation of mother – place of residence of child when one parent wishes to relocate to another state – proposals of parents about residence and contact with child – best interests of child paramount consideration – two children aged 5 and 2 years – mother the primary carer.

PRACTICE AND PROCEDURE – Children – parenting orders – proposals of parents – powers or discretion of court not confined to proposals of parents.

WORDS AND PHRASES – “Compelling reasons”.

Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2)

AMS v AIF; AIF v AMS [1999] HCA 26; (1999) 24 Fam LR; FLC 92-852
U v U [2002] HCA 36; (2002) 29 Fam LR 74

A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035

H v L [2000] FamCA 752; (2000) FLC 93-036

Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878
SMG v RAM [1999] FamCA 1845; (2000) FLC 93-020
Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876

B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755
Raby (1976) 2 Fam LR 11,348; FLC 90-104

Re Evelyn (1998) 23 Fam LR 53; FLC 92-807

Applicant:

K-A E

Respondent:

P R

File No:

PAM 3716 of 2002

Delivered on:

21 February 2003

Delivered at:

Parramatta

Hearing Date:

18 and 19 February 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Battley

Solicitor for the Applicant:

Henshaws

Counsel for the Respondent:

Ms Langley

Solicitor for the Respondent:

Albert A Macri Partners

ORDERS

The Orders made by consent in the Local Court of New South Wales at Liverpool on 5 April 2002 are discharged.
The Respondent Mother is to be at liberty to relocate to the city of D in the Northern Territory with the children of the parties P K A R born
17 July 1997 and S R born 2 August 2000 on or after 22 March 2003.
The mother is to provide details of her address and telephone number in the Northern Territory to the father no later than 3 days prior to her departure.
The said children K A R and S P R are to reside with the mother.
The Applicant Father is to have contact with the said children as follows:
(a)for each of the Northern Territory school holiday periods at the conclusion of the first and third school terms, commencing at 10.00 am on the day after school term concludes and concluding at 10.00 am on the day immediately before the next school term commences;
(b)for the second half of the school holiday period commencing at the conclusion of the second school term in 2003 and alternating each year with the first half of the said school holiday period;
(c)for the second half of the Christmas/January school…

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 E and R

Details

AGLC: E and R [2003] FMCAfam 55
Case: [2003] FMCAfam 55
Decision Date: 21 February 2003

CaseChat Overview and Summary

The case of E and R was heard in the Family Court of Australia. The primary issue was a dispute between the parents regarding the relocation of the children and the subsequent visitation arrangements with the father. The mother, who was seeking to relocate to the Northern Territory with the children, was opposed by the father, who sought extensive visitation rights.

The court had to decide whether the mother could relocate with the children and, if so, what visitation arrangements would be appropriate for the father. The court also needed to determine the responsibilities of both parents regarding communication, travel, and the exchange of information about the children's schooling and health.

The court determined that the mother could relocate to the Northern Territory with the children, but it outlined detailed visitation rights for the father. The court specified times and conditions for the father's contact with the children, including during school holidays, special occasions, and reasonable notice periods. It also mandated that the parents share travel costs equally and communicate promptly about any changes in circumstances. Furthermore, the court required the mother to provide the father with educational and health-related information about the children.

The court issued comprehensive orders that addressed the relocation, visitation, communication, and information exchange aspects of the case. These orders ensured that the father would have significant contact with the children while accommodating the mother's relocation, and they imposed obligations on both parents to maintain open and effective communication regarding the children's welfare.

Orders

Orders of the court

The Orders made by consent in the Local Court of New South Wales at Liverpool on 5 April 2002 are discharged.

The Respondent Mother is to be at liberty to relocate to the city of D in the Northern Territory with the children of the parties P K A R born

17 July 1997 and S R born 2 August 2000 on or after 22 March 2003.

The mother is to provide details of her address and telephone number in the Northern Territory to the father no later than 3 days prior to her departure.

The said children K A R and S P R are to reside with the mother.

The Applicant Father is to have contact with the said children as follows:

(a) for each of the Northern Territory school holiday periods at the conclusion of the first and third school terms, commencing at 10.00 am on the day after school term concludes and concluding at 10.00 am on the day immediately before the next school term commences;

(b) for the second half of the school holiday period commencing at the conclusion of the second school term in 2003 and alternating each year with the first half of the said school holiday period;

(c) for the second half of the Christmas/January school holiday period commencing in 2003. Not to include Christmas Day, and alternating each year with the first half of the said school holiday period including Christmas Day;

(d) on reasonable occasions in D in the event that the Father is visiting D at times arranged by the parties provided that he gives the mother reasonable notice;

(e) by telephone, email or letter at any reasonable time including the children’s birthdays, the father’s birthdays and Father’s Day in each year; and

(f) at such other times as the parties shall agree.

For the purposes of exercising contact, the father is to collect the children from the mother’s residence at the commencement of contact and return them to the mother’s residence at the conclusion of contact.

In the event that the father is unable to exercise any period of contact prescribed by these Orders he is to give the mother 7 days notice of that inability in which case the parties are to arrange a further period of contact to make up for the contact that has been forgone within two (2) months or such other period of time as the parties shall agree.

In the event that the father is unable to exercise any period of contact prescribed by these Orders (with the exception of contact by telephone, email or letter) for a period of six (6) months by reason of illness, injury or inability to obtain leave from his employment during that period, the mother is to take the children to S on one occasion in any one year for the purpose of the children exercising contact with the father for a period of not less than seven (7) days, for which purpose the father is to arrange reasonable accommodation for the mother and the children at his expense.

The parties are to be equally responsible for all travel costs incurred in exercising contact.

10.

The mother is permitted to telephone the children during all periods of block contact with the father each Tuesday and Thursday between the hours of 6.00 and 6.30 pm (New South Wales time).

11.

The Mother is to give the Father 21 days written notice of her intention to reside with the child in any State or Territory of Australia other than the Northern Territory.

12.

The parties are to notify each other within 6 hours of any illness or injury sustained by the said child requiring either treatment at a hospital or attendance upon a specialist medical practitioner.

13.

The Mother is to authorise the principal of each school attended by the said child to provide to the Father on a regular basis copies of all school reports concerning the said child and copies of all school bulletins and newsletters as are normally provided to parents of children attending the child’s school, such authority to be given by the Mother within seven (7) days of the child commencing to attend the school.

14.

The Mother is to authorise the principal of each school attended by the said child to forward to the Father all necessary information about school photographs of the child on a regular basis and permit the Father to obtain copies of such photographs as he may wish at his own expense.

15.

Each party is to inform the other of any changes to their address or landline telephone number within seven (7) days of such change.

16.

The father is to advise the mother of an address where the children will be residing and a telephone number upon which they can be contacted during any periods of block contact.

17.

All documents produced on subpoena with the exception of exhibits are to be returned.

Background

Background to the litigation

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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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