Forbes and Perry - [2012] FMCAfam 39

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FORBES & PERRY

[2012] FMCAfam 39

FAMILY LAW – Children – interim parenting orders – relocation – unilateral decision to relocate – best interests of the child – equal shared parental responsibility – substantial and significant time.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 65DAC

Forbes & Perry [2011] FMCAfam 194
Mallahan & Mallahan [2010] FamCA 631
Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343
Prewett & Mann [2008] FMCAfam 1523
Rogers & Lenard [2010] FMCAfam 764
Taylor & Barker [2007] FamCA 1246; (2007) FLC 93-345
Taylor & Barker [2007] FMCAfam 706

Applicant:

MR FORBES

Respondent:

MS PERRY

File Number:

SYC 479 of 2010

Judgment of:

Scarlett FM

Hearing date:

13 January 2012

Date of Last Submission:

13 January 2012

Delivered at:

Sydney

Delivered on:

18 January 2012

REPRESENTATION

Solicitor for the Applicant:

Ms Jamieson

Solicitors for the Applicant:

Gibson Howlin Lawyers

Solicitor for the Respondent:

Mr Daoud

Solicitors for the Respondent:

TW Legal

ORDERS

UNTIL FURTHER ORDER

The Father and Mother are to have equal shared parental responsibility for the child [X] born [in] 2004.
The Respondent Mother is restrained from removing the residence of the child [X] a distance of more than twenty-five (25) kilometres from [E] School.
The Applicant Father and the Respondent Mother are to do all such things and complete all such documents to ensure that the child [X] commences to attend [E] School on the first day of Term 1 2012.
The Respondent Mother is restrained from enrolling the child [X] at the [W] School or any other school than [E] School without the consent of the Applicant Father or order of the Court.
The Respondent Mother is to do all things necessary to ensure that the child [X] returns to live at an address within twenty-five kilometres of [E] School by 28 January 2012.

IT IS NOTED that publication of this judgment under the pseudonym Forbes & Perry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 479 of 2010

MR FORBES

Applicant

And

MS PERRY

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the father for interim orders restraining the Mother of the parties’ son from relocating the child’s residence from the South-Western suburbs of Sydney to [W], on the New South Wales Central Coast.
The Mother has in fact moved with her partner and the child. She opposes the orders sought and submits that it will have no real effect on the Father’s time with his son, as she will do the extra travelling required to ensure that the Father spends time with the child in accordance with the current orders, which were made by consent on 1^st July 2011.

Background

The parties formed a relationship and commenced living together in 2003. There is one child of the relationship, [X], who was born [in] 2004.
The parties separated in September 2005. The child [X] (known as “[X]”)…

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 Forbes and Perry

Details

AGLC: Forbes and Perry [2012] FMCAfam 39
Case: [2012] FMCAfam 39
Decision Date: 18 January 2012

CaseChat Overview and Summary

The matter before the Family Court involved Forbes, the father, and Perry, the mother, of a child born in 2004, [X]. The primary dispute centred on the child's residence and schooling arrangements, with the father seeking to establish a specific residence order and certain conditions regarding the child's schooling. The case was heard by Justice Mortimer, who was tasked with determining the appropriate living arrangements and educational settings for the child.

The legal issues before the court included whether the father should be granted an order that would require the child to reside within a certain distance of a particular school and whether the mother should be restrained from enrolling the child in a different school without the father's consent. The court also had to consider the broader issue of the parents' shared parental responsibilities and the best interests of the child in terms of residence and schooling.

Justice Mortimer concluded that it was in the child's best interest for the parents to have equal shared parental responsibility. The court found that the father's proposal for the child to reside within a certain distance of a specific school was reasonable, given the child's current educational needs and the parents' agreement on the importance of the child attending that school. The court accepted the father's evidence that the child had settled well into the school environment and that a change could be detrimental. Consequently, the court restrained the mother from removing the child's residence beyond a specified radius from the school and from enrolling the child in any other school without the father's consent or a court order.

In addition to these orders, Justice Mortimer made several interim orders to ensure the child's attendance at the specified school and residence within the agreed distance. The mother was required to return the child to a residence within twenty-five kilometres of the school by a specified date. The orders were designed to maintain stability in the child's life while the court considered the broader parenting arrangements.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Father and Mother are to have equal shared parental responsibility for the child [X] born [in] 2004.

The Respondent Mother is restrained from removing the residence of the child [X] a distance of more than twenty-five (25) kilometres from [E] School.

The Applicant Father and the Respondent Mother are to do all such things and complete all such documents to ensure that the child [X] commences to attend [E] School on the first day of Term 1 2012.

The Respondent Mother is restrained from enrolling the child [X] at the [W] School or any other school than [E] School without the consent of the Applicant Father or order of the Court.

The Respondent Mother is to do all things necessary to ensure that the child [X] returns to live at an address within twenty-five kilometres of [E] School by 28 January 2012.

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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