FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BADCOE & BADCOE | [2008] FMCAfam 1368 |
| FAMILY LAW – Parenting – relocation – best interests of the child – willingness and capacity to promote child’s relationship with the other parent – meaningful relationship with both parents. PRACTICE & PROCEDURE – Application to re-open. |
| Family Law Act 1975, Part VII, ss.60B (1), 60CC, 60CC (1), (3) (c) – (g), (i), 60CC (4), 61DA, 65DAA, 65DAA (1) & (2) |
| AMS v AIF, AIF v AMS (1999) 199 CLR 160 P. Easteal & K. Harkins, “Are we there? An analysis of relocation judgments in light of changes to the Family Law Act,” (2008) 22 Australian Journal of Family Law 259-278. |
| Applicant: | MR BADCOE |
| Respondent: | MS BADCOE |
| File Number: | CAC 47 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 10 July & 21 October 2008 |
| Date of Last Submission: | 7 November 2008 |
| Delivered at: | Canberra |
| Delivered on: | 19 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodgson |
| Solicitors for the Applicant: | Nicholl & Co Lawyers |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Stacks Southern Lawyers |
ORDERS
All previous Orders in relation to the children, [X] born in 2001 and [Y] born in 2006 be discharged.
The parents have equal shared parental responsibility for the children.
The children live with the Mother.
The Mother be at liberty to relocate with the children from [G] to the Central Coast.
The children spend time with the Father as follows:
(a)Each alternate weekend of the school term, commencing at 6:00pm Friday until 4:00pm Sunday;
(b)During each New South Wales school term holiday period, from 6:00pm on the first Sunday to 6:00pm on the last Friday;
(c)During the New South Wales Christmas school holiday period for four weeks as agreed between the parties;
(d)Such other and alternative times as agreed by the parents in writing.
Unless otherwise agreed in writing, the children shall spend time on the Mother’s Day weekend with the Mother and the Father’s Day weekend with the Father, from 5pm on Friday until 5pm on Sunday, regardless of where they would otherwise be living in accordance with these Orders.
Unless otherwise agreed in writing and regardless of where they would otherwise be living…
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- AGLC
- F v F [2008] FMCAfam 1368
- Case
- [2008] FMCAfam 1368
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it was in the best interests of the children for the mother to relocate, considering the statutory criteria set out in the Family Law Act. This included assessing the willingness and capacity of both parents to promote and facilitate a meaningful relationship between the children and the other parent. The court also needed to decide on the parenting arrangements, including time-sharing orders, communication, and decision-making responsibilities.
The court concluded that the relocation was in the children's best interests, as it would provide them with better living conditions and opportunities. The court found that both parents were capable and willing to maintain a meaningful relationship with the children. The court issued detailed orders regarding the children's living arrangements, time-sharing, communication, and decision-making responsibilities, ensuring equal shared parental responsibility. The mother was permitted to relocate with the children, subject to the court's detailed parenting orders.
Orders
Orders of the court
1.
All previous Orders in relation to the children, [X] born in 2001 and [Y] born in 2006 be discharged.
2.
The parents have equal shared parental responsibility for the children.
3.
The children live with the Mother.
4.
The Mother be at liberty to relocate with the children from [G] to the Central Coast.
5.
The children spend time with the Father as follows:
(a) Each alternate weekend of the school term, commencing at 6:00pm Friday until 4:00pm Sunday;
(b) During each New South Wales school term holiday period, from 6:00pm on the first Sunday to 6:00pm on the last Friday;
(c) During the New South Wales Christmas school holiday period for four weeks as agreed between the parties;
(d) Such other and alternative times as agreed by the parents in writing.
6.
Unless otherwise agreed in writing, the children shall spend time on the Mother’s Day weekend with the Mother and the Father’s Day weekend with the Father, from 5pm on Friday until 5pm on Sunday, regardless of where they would otherwise be living in accordance with these Orders.
7.
Unless otherwise agreed in writing and regardless of where they would otherwise be living in accordance with these Orders, the children will spend time with the Mother and Father on Christmas Day as follows:
(a) In odd numbered years with the Father from 5pm Christmas Eve until 1pm on Christmas Day;
(b) In even numbered years with the Mother from 5pm Christmas Eve until 1pm on Christmas Day.
8.
For the purposes of facilitating changeover for the time the children shall spend with their parents, the changeover location shall be at a point approximately half way between the permanent residence of the Mother and Father or as otherwise agreed.
9.
Should the Father travel to the Sydney or Central Coast area and wish to spend time with the children on one weekend per month when the children would not otherwise be spending time with him pursuant to these Orders, and upon providing the Mother with 14 days notice of his intention to spend time with the children, the Mother will make the children available to spend time with the Father.
10.
Neither party shall allow the children to come into contact with the Paternal Grandmother’s partner, Mr J at any time.
11.
The children communicate with their parents as follows:
(a) The Father may telephone the children at any time between 9:00am and 7:00pm;
(b) The Mother may telephone the children at any reasonable time when they are spending time with the Father;
(c) At any reasonable time that the children request to telephone the parent with whom they are not otherwise living or spending time with;
(d) The Father may communicate with the children via email at any time.
12.
In the event the Father resides within reasonable distance of the Mother’s permanent residence and any school or childcare centre attended by the children, the children shall spend time with each parent equally on an alternating week-about basis.
13.
The parents shall ensure that they keep the other informed of their current mobile or landline telephone number and email address.
14.
The parent with whom the children is living with or spending time with shall deliver and collect the children to and from any extracurricular activities or sporting activities as agreed upon between the parties, during the time that the children lives or spends time with that parent.
15.
The parents are not to denigrate or otherwise speak ill of the other parent in the presence of the children, and they must use their best endeavours to ensure that no other person does so.
16.
The parents are not to discuss legal proceedings in relation to the children in the presence of the children, and must use their best endeavours to ensure that no other person does so.
17.
Both parents do all things necessary to authorise the children’s school to provide the other parent with copies of all school and pre-school reports, memorandum, letters and notes in relation to the child’s schooling.
18.
Both parents shall keep the other parent informed of all significant education, social, sporting or other extracurricular events in which the children are involved and that both parents are at liberty to attend such events.
19.
Both parents shall keep the other informed of any difficulty the children have at school so as to ensure each parent has the opportunity for equal input into resolving the difficulty.
20.
The parties shall keep the other informed of any major medical issue involving the child, particularly of any medical attention or treatment received by the child, any medication requirements or medical appointments and provided that this notification shall be as immediate as practicable in the event of an emergency.
21.
All parties notify each other of any change in residential address 28 days before that change of address is known. If the address is not known to the parent 28 days prior to the date of change, as soon as practicable.
22.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
23.
If the parties experience difficulties with the implementation of these Orders, they agree to contact a Family Relationships centre or similar family mediation service to discuss a resolution of their difficulties and the cost of such mediation is to be met equally by the parties.
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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