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Edmondson & Samford

Edmondson & Samford

Case [2023] FedCFamC2F 171 22 February 2023

Parental Responsibility

Relocation

Sole Parental Responsibility

Jurisdiction

Best Interests of the Child

Family Violence

Equal Shared Parental Responsibility

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Edmondson & Samford [2023] FedCFamC2F 171

File number(s): CAC 976 of 2019

Judgment of: JUDGE W J NEVILLE

Date of judgment: 22 February 2023

Catchwords: FAMILY LAW – Parenting – relocation – where the Mother seeks to relocate with the children to City B, NSW from Town C, NSW – where the Father lives in Town D, VIC and opposes the relocation – Mother consents to delaying relocation for some time to allow the Father to re-establish his relationship with the children – Father has not had contact with the children due to criminal proceedings in which one of the children was required to give evidence – Father found guilty of various offences against the Mother – Certificate pursuant to section 128 of the Evidence Act 1995 (Cth) - Mother re-partnered but does not propose to live with her new partner – Mother seeks to relocate to a larger town with more opportunities - Mother seeking Father spend time with the children during holidays only regardless of whether the relocation is granted – clear views expressed by the children against relocation – consideration of best interests of children – relocation granted in 12 months’ time once the children have re-established their relationship with their Father – Mother to have sole parental responsibilities – children to spend time with Father in school holidays.

Legislation:
Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) ss 60CC, 61DA, 69ZX(3)(b), s102NA

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

B & B [2006] FamCA 1207

Blanding v Blanding (2017) 55 Fam LR 218

Cales & Cales (2010) 44 Fam LR 376

Collu & Rinaldo [2010] FamCAFC 53

F v F (2008) 38 Fam LR 52

Fox v Percy (2003) 214 CLR 118

Franklyn & Franklyn [2019] FamCAFC 256

Franklyn & Franklyn (2021) FLC 94-031

Godfrey v Sanders (2007) 208 FLR 287

Hendy & Penningh (2018) FLC 93-879

Hepburn & Noble (2010) FLC ¶93-348

M v S (2008) 37 Fam LR 32

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) 41 Fam LR 483

Moose & Moose (2008) FLC ¶93-375

Payne v Payne [2001] Fam 473

Sheldon & Weir (No.3) [2010] FamCA 1138

Sigley v Evor (2011) 44 Fam LR 439

Starr & Duggan [2009] FamCAFC 115

Taylor & Barker (2007) 37 Fam LR 461

U v U (2002) 211 CLR 238

Vontek v Vontek [2017] FamCAFC 28

Wiley & Wiley [2008] FamCAFC 153

Division: Division 2 Family Law

Number of paragraphs: 173

Date of last submission/s: 1 November 2022

Date of hearing: 1- 2 August 2022 & 15 September 2022

Place: Canberra

Counsel for the Applicant Dr J Behrens

Solicitor for the Applicant Neilan Stramandinoli Family Law

Counsel for the Respondent Ms M Davis under s120NA for the purposes of cross-examination of the Mother only

Solicitor for the Respondent Self-represented with Gabbedy Milson Lee under s120NA for the purposes of cross-examination of the Mother only

Solicitor as the…

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 Edmondson & Samford

Details

AGLC: Edmondson & Samford [2023] FedCFamC2F 171
Case: [2023] FedCFamC2F 171
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) considered a case between Edmondson and Samford, concerning the relocation of children and parenting arrangements. The court was required to decide whether the Mother, Ms Edmondson, should be permitted to relocate with the children to a larger town, and if so, whether this relocation should be delayed to allow the children to re-establish their relationship with their Father, Mr Samford. Additionally, the court needed to determine the appropriate parenting arrangements, including the allocation of parental responsibility and the children's time-sharing arrangements with both parents.

The court considered the legal principles and relevant authorities, including the Family Law Act 1975 (Cth) and various Full Court decisions. The court emphasised the importance of the best interests of the child as the paramount consideration and the need to balance the parents' right to freedom of movement with the children's right to maintain a meaningful relationship with both parents. The court also noted the importance of considering the long-term interests of the child rather than just their short-term interests.

After considering the evidence and submissions from both parties, the court found that the Mother should be permitted to relocate to a larger town with more opportunities for the children. However, the relocation should be delayed by 12 months to allow the children to re-establish their relationship with their Father. The court also found that the Mother should have sole parental responsibility, subject to consultation with the Father before making any major long-term decisions. The children were to spend time with the Father during school holidays and on special occasions.

The court made specific Orders for the children's time-sharing arrangements with both parents, communication between the parents, and restraints on certain behaviours. The court also ordered that both parents enrol in a parenting course covering communication and emotional regulation.

Orders