FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FORD & BELL | [2011] FMCAfam 635 |
| FAMILY LAW – Parenting – relocation – insufficiency of evidence – declaration of intention by one parent to relocate regardless of Court order – procedural fairness – ‘best interest’ considerations in curial power/discretion to restrain parent from relocating – ‘best interests’ of Grandparents versus the best interests of children – nature and goal of s.69ZT of Family Law Act to facilitate child-related proceedings rather than to remedy defects in or lack of evidence. |
| Family Law Act 1975 (Cth), ss.60B(1), (2), 60CA, 60CC(1), (2), 60CC(3)(a) – (l), 61DA, 65DAA(1)-(4), 68B, 69ZT, 94AAA, 114(3) |
| Ahcraft v Haber [2010] FamCA 6 B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context, (Melbourne: Oxford University Press, 2008) J. Behrens, “U v U: The High Court on Relocation,” (2003) 27 Melbourne University Law Review 572 |
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- AGLC
- Ford and Bell [2011] FMCAfam 635
- Case
- [2011] FMCAfam 635
- Decision Date
CaseChat Overview and Summary
The court examined whether section 69ZT of the Act allowed for the application of rules of evidence in child-related proceedings when circumstances were deemed exceptional. It also considered whether the Act could be invoked to remedy gaps in evidence, where no evidence had been presented or where the evidence was minimal and insufficient to address the issues before the court. The court had to determine if the lack of relevant evidence in this case constituted an exceptional circumstance under section 69ZT(3) of the Act.
In its reasoning, the court found that the lack of relevant evidence in this case did indeed constitute an exceptional circumstance under section 69ZT(3) of the Act. The court concluded that the extremely limited evidence presented by Dr L and the few statements made by Ms Bell did not meet the appropriate standard for the issues of relocation to be resolved. Consequently, the court determined that the rule of evidence in relation to adverse inference could and should be applied. The court also noted that section 69ZT could be invoked to remedy defects in evidence presented, but not to remedy gaps in evidence where no evidence had been given or the evidence was of minimal importance.
The court issued several orders regarding the care and relocation of the children. The mother was restrained from relocating to Tasmania and from moving the children’s residence outside a 200-kilometer radius of Wagga Wagga until the children completed their schooling. Both parents were granted equal shared parental responsibility for the children, who would continue to live with the mother. Specific arrangements were set for the children's time with the father, including weekend and school holiday visitation schedules. The court also detailed provisions for handovers, communication between parents, and the sharing of information regarding the children’s health and education.
Orders
Orders of the court
1.
In the absence of written agreement with the Father or order of the Court, the Mother is restrained from (a) relocating to Tasmania, and (b) relocating the children’s residence outside a radius of 200 kilometres from Wagga Wagga. This Order is to remain in place until all of the children have completed their schooling.
2.
The parties have equal shared parental responsibility for the children [X] born [in] 1994, [Y] born [in] 1996 and [Z] born [in] 1999 (“the children”).
3.
The children live with the Mother.
4.
The children [Y] and [Z] spend weekend time with the Father as follows:-
(a) Should [Y] or [Z] be enrolled in a winter sport, and on condition that the Mother provide to the Father written confirmation of that enrolment and the duration of the sport’s season; every third weekend from Friday 6.00 pm until Sunday 6.00 pm;
(b) At all other times, each alternate weekend from Friday 6.00 pm until Sunday 6.00 pm.
5.
The children [Y] and [Z] spend school holiday time with the Father as follows:
(a) For three one week periods during the school holidays as follows;
(i) On two occasions, on four weeks written notice by the Father;
(ii)
In 2010 and each alternate year thereafter from 4.00 pm on 26 December for a period of seven days concluding on
2 January;
(iii)
In 2011, and in each alternate year thereafter from
24 December at 4.00 pm for a period of seven days concluding on 31 December;
(iv) At all other times as agreed.
6.
The child [X] be invited to spend time with the Father on each and every occasion that [Y] and [Z] are spending time with the Father.
7.
Handover is to be effected by the Father collecting the children at the beginning of each visit from the Wagga Wagga Children’s Contact Service and the Mother collecting the children at the end of each visit from the Albury / Wodonga Children’s Contact Service, at the times stipulated above or at such times as the Contact Centres can facilitate.
8.
Each party forthwith do all such things and sign all such documents required to complete the intake procedure with both Contact Services.
9.
Each party is authorised to contact school(s) that the children may attend to obtain copies of all reports, examples of work, newsletters, notification of all activities, parent / teacher nights, and to be informed of any emergency, remedial or correctional treatment required by the children as soon as is practicable.
10.
Each party is authorised to contact any treating medical practitioner, hospital or medical practise that the children may attend from time to time to obtain any information regarding the children.
11.
The parents keep one another informed of any sickness or illness of the children.
12.
The Mother and Father notify the other party by telephone when the assistance of a medical practitioner is sought in relation to the children.
13.
The parents keep one another informed of a contact address and telephone number at all times.
14.
The parties shall notify each other within seven days of a change of address and within forty eight hours of a change of telephone number.
15.
Each parent be permitted to telephone the children each Wednesday night between 6.30 pm and 7.30 pm when the children are in the other party’s care and during that time the parent whose care the children are in will ensure that the children are present and as far as practicable the landline to the home is kept free and available to receive the call.
16.
The Mother forthwith inform the Father of the schools that the children attend and the details of such schools, as well as the medical practice and specialists that the children attend, and their contact details.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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