F and F - [2002] FMCAfam 428

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & F

[2002] FMCAfam 428

FAMILY LAW – Children – proposal to remove child inter-state – parenting orders – contact orders – 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.

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

AMS v AIF; AIF v AMS [1999] HCA 26; (1999) 24 Fam LR 756; 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
Jurss (1976) 9 ALR 455; 1 Fam LR 11,203; FLC 90-041
Maday (1985) 10 Fam LR 357; FLC 91-636

Applicant:

M E F

Respondent:

A C F

File No:

PAM 1831 of 2000

Delivered on:

24 December 2002

Delivered at:

Parramatta

Hearing Dates:

19 & 20 December 2002

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Stewart

Solicitors for the Applicant:

Stockman & Evans

Counsel for the Respondent:

Mr Givney

Solicitors for the Respondent:

Adrian Twigg & Co

ORDERS

The Orders made by the Family Court of Australia at Parramatta on
29 October 1999 are discharged.
The Respondent Mother is to be at liberty to relocate to the city of Melbourne in the State of Victoria with the child of the marriage
K M F born 10 February 1998 on or after 29 December 2002.
The Applicant Father is to have contact with the said child as follows:
(a)for each of the Victorian school holiday periods at the conclusion of the first, second 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)from 31 December 2002 until 9.00 am on the day one week before the commencement of the first school term in 2003 and each alternate year thereafter;
(c)from 5.00 pm on Christmas Eve 2003 until 9.00 am on the day two weeks before the commencement of the first school term in 2004 and each alternate year thereafter;
(d)on Father’s Day and on the Father’s birthday at times arranged by the parties;
(e)on reasonable occasions during the day in Melbourne when the Father is visiting Melbourne at times arranged by the parties;
(f)by telephone, e-mail or letter at any reasonable time; and
(g)at such other times as the parties shall agree.
Until the child is of an age where she may be permitted to travel on an aircraft unaccompanied by an adult, 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 F and F

Details

AGLC: F and F [2002] FMCAfam 428
Case: [2002] FMCAfam 428
Decision Date: 24 December 2002

CaseChat Overview and Summary

In the case of F and F, the parties were involved in a dispute concerning the custody and relocation of their young daughter, K. The father was concerned about a reduction in his contact with the child, while the mother wished to relocate to Melbourne to be closer to her extended family. The Family Court of Australia at Parramatta was tasked with determining the best interests of the child in light of the parents' differing proposals.

The court had to decide several legal issues, including the consideration of the child's maturity, sex, and background, as well as the need to protect the child from physical or psychological harm. Additionally, the court needed to assess the attitudes of both parents towards parenting and determine the most appropriate living arrangements for the child. The court also had to consider the potential for future disputes and the need for finality in the proceedings.

After considering the evidence and the relevant statutory provisions, the court concluded that the mother should be allowed to relocate to Melbourne with the child. The court found that the mother's desire to be closer to her family and the positive relationship between the child and her stepmother were significant factors in favour of relocation. The court also noted that the father and mother had previously been able to cooperate in their co-parenting efforts and that the mother's relocation might reduce the likelihood of future disputes. The court made detailed orders regarding the child's contact with the father, including specific provisions for school holidays, special occasions, and communication between the parties.

The court's final orders included provisions for the mother's relocation to Melbourne, the father's contact with the child, and various measures to facilitate communication and cooperation between the parties. The court also included specific provisions regarding the child's education, healthcare, and communication with the father. These orders aimed to promote the child's best interests while minimising the potential for future disputes between the parties.

Orders

Orders of the court

The Orders made by the Family Court of Australia at Parramatta on

29 October 1999 are discharged.

The Respondent Mother is to be at liberty to relocate to the city of Melbourne in the State of Victoria with the child of the marriage

K M F born 10 February 1998 on or after 29 December 2002.

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

(a) for each of the Victorian school holiday periods at the conclusion of the first, second 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) from 31 December 2002 until 9.00 am on the day one week before the commencement of the first school term in 2003 and each alternate year thereafter;

(c) from 5.00 pm on Christmas Eve 2003 until 9.00 am on the day two weeks before the commencement of the first school term in 2004 and each alternate year thereafter;

(d) on Father’s Day and on the Father’s birthday at times arranged by the parties;

(e) on reasonable occasions during the day in Melbourne when the Father is visiting Melbourne at times arranged by the parties;

(f) by telephone, e-mail or letter at any reasonable time; and

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

Until the child is of an age where she may be permitted to travel on an aircraft unaccompanied by an adult, the Mother is to accompany the said child on any flight for the purpose of contact at her own expense or arrange for the child to be accompanied by a responsible adult.

The Mother is to give the Father 14 days written notice of her intention to reside with the child in any State of Australia other than Victoria.

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.

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.

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.

The Mother is to notify the Father of the name and address of each school attended by the said child no later than 48 hours before the child commences to attend such school.

10.

The Mother is to advise the Father of her intention to enrol the child at a secondary school no later than three months before the child is due to commence at secondary school and consult with the father about the selection of a suitable secondary school for the said child.

11.

The Mother is to notify the Father of her landline telephone number in Melbourne within 7 days of her arrival in Melbourne.

12.

The Mother is to make all necessary arrangements to obtain an e-mail facility so that the said child may communicate with the Father by

e-mail by 30 June 2003.

13.

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

Background

Background to the litigation

S.68f(2)(f) – the child’s maturity, sex and background. The child is a little girl not yet 5 years old. There is no presumption that little girls should live with their mothers, and K’s stepmother appears to have a good relationship with her. This factor is a constant across all proposals. S.68F(2)(g), (j) – the need to protect the child from physical or psychological harm, family violence etc. There is no apprehended violence order in force, and no history of violence. There has been one unfortunate incident on 5th September 2002, where there was an altercation between the parties, which involved physical violence by the Mother. It seems clear on all the evidence that this was an uncharacteristic ‘one-off’ event that is unlikely to be repeated. This factor is a constant across all proposals. S.68F(2)(h) – Attitudes to parenting. Each parent seems to be child-focussed and mature, although the “lobbying” to which I referred in paragraphs 29 through to 31 is a cause of concern. I note that this evidence appears in chief in the affidavit of L-J F, and it appears that the Father and Mrs F were, at the very least, thoughtless inputting the child under the pressure that they did. At the same time there is evidence of the Mother revealing her frustration and, on one occasion, the Father reports her as saying that he would never have contact with the child at Christmas time. This has since been remedied in the Mother’s case. The Father refers to the Mother taking the child to Melbourne in October without his consent, contrary to the Interim Order made by consent on 2nd September 2002. I am not asked to deal with an allegation of a contravention of a parenting Order, and it may be that the Mother misunderstood what her obligations were, but there arises a suggestion that the Mother was prepared to act in defiance of an order when it suited her. An Order least likely to lead to further proceedings. There needs to be finality to proceedings. The parties were able to co-operate about their child until this year. Their relationship is now strained, and any of the three proposals could see difficulties arising with contact orders in the future. I am inclined to the view, however, that if the Mother were able to relocate to Melbourne and live near her parents and siblings, which I am satisfied that she desperately wishes to do, she would be much happier and more settled. If she were under less pressure, she would be more likely to adopt a flexible approach to contact. Relocation proceedings seem to be more frequent than ever before, and it was only through the efforts of counsel that these proceedings were contained in the two days allotted to them. Had there been a Family report, I am sure the proceedings would have taken longer. This case has been brought about because each parent has a strong and loving and relationship with the child K. The father is very concerned at a reduction in his contact with the child. The Mother wishes to return to Melbourne where her extended family can support her. The events of the year 2002 have clearly indicated to her that there is little left for her in Sydney. Her former husband has remarried; there is now a new Mrs F. She has been retrenched from her job. I am satisfied that these events have shaken her and caused her to reconsider her life. She says that her former husband became antagonistic towards her after he remarried. She has used the occasion to revert to her maiden name. I am not persuaded that the incident of the child calling herself “K S” is anything for the Father to worry about. There is no application before the Court that this child should be called by any other surname than F, and the Mother said in evidence that the child was enrolled at school under that name. I accept the Mother’s explanation that the child was fascinated by the fact that the Mother had a new name, and decided that she wanted one too. After all, there is evidence that she was calling herself “K Fairy” at one stage. She is only four years old.

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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