FLYNN & JEFFCOTT - [2011] FMCAfam 1239

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLYNN & JEFFCOTT

[2011] FMCAfam 1239

FAMILY LAW – Children – relocation – where the mother seeks to relocate from the [S] area of New South Wales to the Newcastle area.

FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – equal time with each parent – substantial and significant time – child aged two years and nine months – whether father should be authorised to arrange for child to be immunised against childhood diseases.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CB, 60CC, 61DA, 65AA, 65D, 65DAA, 62G

A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035
AMS v AIF; AIF v AMS (1999) 199 CLR 160; 24 Fam LR 756; FLC 92-582
Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Mallahan & Mallahan [2010] FamCA 631
MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424
U v U (2002) 211 CLR 238; 29 Fam LR 74; FLC 93-112

Applicant:

MR FLYNN

Respondent:

MS JEFFCOTT

File Number:

SYC 6945 of 2009

Judgment of:

Scarlett FM

Hearing dates:

23 – 24 June 2011

Date of Last Submission:

24 June 2011

Delivered at:

Sydney

Delivered on:

25 November 2011

REPRESENTATION

Counsel for the Applicant:

Ms Messner

Solicitors for the Applicant:

Abrams Turner Whelan

Counsel for the Respondent:

Ms Humphreys

Solicitors for the Respondent:

Rebecca Bailey & Associates

ORDERS

All previous parenting Orders are discharged.
The Applicant father and the Respondent mother are to have equal shared parental responsibility for the child [X] born [in] 2009.
The Applicant father is to have sole parental responsibility for all day to day matters involving the child when the child is in his care according to these Orders and the mother is to have sole parental responsibility for all day to day matters involving the child when the child is in her care according to these orders.
The child [X] born [in] 2009 is to live with the Respondent mother.
The child [X] is to spend time with the father in a four weekly cycle as follows:
(a)In Week 1, from 4:30 pm on Wednesday until 4:30 pm on Thursday;
(b)In Week 2, from 4:30 pm on Friday until 9:00 am on Sunday;
(c)In Week 3, from 9:00 am on Wednesday until 9:00 am on Friday; and
(d)In Week 4, from 9:00 am on Friday until 9:00 am on Monday.
In addition to the times set out in Order (5) above, the child [X] is to spend time with the father on the following days:
(a)From 9:00 am to 4:00 pm on Father’s Day in each year;
(b)For a period of four (4) hours on the child’s birthday in each year if that day should fall on a day when the child would not otherwise be spending time with the father according to Order (5) above;
(c)From 6:00…

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 FLYNN & JEFFCOTT

Details

AGLC: FLYNN & JEFFCOTT [2011] FMCAfam 1239
Case: [2011] FMCAfam 1239
Decision Date: 25 November 2011

CaseChat Overview and Summary

Flynn & Jeffcott involved a dispute between the parents of a two-year-old child, [X], concerning parenting arrangements and the relocation of the child from the S area of New South Wales to the Newcastle area. The case was heard in the Family Court of Australia. The primary concern was the mother's application to relocate with the child, which the father opposed, along with other parenting issues including immunisation and shared parental responsibility.

The legal issues before the court included determining whether the mother should be permitted to relocate the child more than 50 kilometres from their current residence, assessing the best interests of the child in relation to parenting arrangements, and deciding on the allocation of parental responsibility and decision-making authority. The court had to consider the implications of the relocation on the child’s relationship with both parents, the existing parenting arrangements, and the child's health and welfare.

The court determined that the mother should not be allowed to relocate the child to Newcastle, as it would significantly disrupt the child's relationship with the father. The court concluded that the best interests of the child were served by maintaining the existing residential arrangements, while allowing for a detailed and structured visitation schedule that provided substantial and significant time with both parents. The court also established equal shared parental responsibility, with each parent having sole responsibility for day-to-day decisions when the child was in their care. The father was authorised to arrange for the child’s immunisation.

The court issued comprehensive parenting orders, discharging previous orders and setting out a detailed schedule for the child’s time with each parent, including specific arrangements for holidays, special occasions, and medical information sharing. The mother was restrained from relocating the child to a place more than 50 kilometres from their current residence until a specified future date.

Orders

Orders of the court

All previous parenting Orders are discharged.

The Applicant father and the Respondent mother are to have equal shared parental responsibility for the child [X] born [in] 2009.

The Applicant father is to have sole parental responsibility for all day to day matters involving the child when the child is in his care according to these Orders and the mother is to have sole parental responsibility for all day to day matters involving the child when the child is in her care according to these orders.

The child [X] born [in] 2009 is to live with the Respondent mother.

The child [X] is to spend time with the father in a four weekly cycle as follows:

(a) In Week 1, from 4:30 pm on Wednesday until 4:30 pm on Thursday;

(b) In Week 2, from 4:30 pm on Friday until 9:00 am on Sunday;

(d) In Week 4, from 9:00 am on Friday until 9:00 am on Monday.

In addition to the times set out in Order (5) above, the child [X] is to spend time with the father on the following days:

(a) From 9:00 am to 4:00 pm on Father’s Day in each year;

(b) For a period of four (4) hours on the child’s birthday in each year if that day should fall on a day when the child would not otherwise be spending time with the father according to Order (5) above;

(c) From 6:00 pm on Christmas Eve until 12 noon on Christmas Day in 2012 and all even numbered years thereafter and from 12 noon on Christmas day until 6:00 pm on Boxing Day in 2011 and all odd numbered years thereafter; and

(d) From and after the time the child commences at school for half of each of the Autumn, Winter and Spring school holidays being the first half in all odd numbered years and the second half in all even numbered years and for a period of three (3) weeks commencing on 2 January in each year the first of such years being the year after the child first commences school.

Notwithstanding the provisions of Orders (5) and (6) above, the child is to live with the mother as follows:

(a) From 9:00 am to 4:00 pm on Mother’s Day in each year;

(b) For a period of four (4) hours on the child’s birthday in each year if that day should fall on a day when the child would not otherwise be living with the mother according to these Orders;

(c) From 6:00 pm on Christmas Eve until 12 noon on Christmas Day in 2011 and all odd numbered years thereafter and from 12 noon on Christmas Day until 6:00 pm on Boxing Day in 2012 and all even numbered years thereafter.

For the purpose of giving effect to Orders (5), (6) and (7) the father is to collect the child [X] from the mother’s residence at the commencement of his time with the child and the mother is to collect the child from school or from the father’s residence as the case may be at the conclusion of the father’s time with the child.

The parties shall promptly keep each other informed about all medical emergencies affecting the child, all specialist medical appointments, all hospital treatment involving the child, the name and address of all treating doctors and all prescribed medication.

10.

The parties shall keep each other informed of any changes to their residential address or telephone numbers within forty-eight (48) hours of any such change occurring.

11.

Upon the child commencing school, the parties shall each be entitled to receive at their own expense copies of all school reports, newsletters, information about school photographs and all other documents normally received by parents of children attending that school.

12.

The Respondent mother is restrained from relocating the residence of the child [X] born [in] 2009 to a place more than fifty (50) kilometres outside the town of [S] on any date prior to [omitted] 2013.

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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