G and M - [2002] FMCAfam 364

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & M

[2002] FMCAfam 364

FAMILY LAW – Children – application to remove child interstate – parenting orders – contact orders – mother the in challenged residence parent – planned relocation of mother – place of residence of child when on parent wishes to relocate to another state – proposals of parents about residence of child and contact with child – bests interests of child paramount consideration.

FEDERAL MAGISTRATES COURT – Practice and procedure – children – parenting orders – proposals of parents – powers or discretion of court not confined by proposals of parents.

WORDS AND PHRASES – “Compelling reasons”.

The Constitution s.92
Family Law Act 1975 (Cth) ss.60B; 65E; 68F(2)

AMS v 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 & 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 676; FLC 92-755

Applicant:

G S G

Respondent:

K M

File No:

PAM 1059 of 2002

Delivered on:

1 October 2002

Delivered at:

Parramatta

Hearing Dates:

18, 19 & 26 September 2002

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Sansom

Solicitors for the Applicant:

Watts McCray

Counsel for the Respondent:

Mr Heazlewood

Solicitors for the Respondent:

McGrath Dicembre & Co

Counsel for the Child’s Representative:

Mr Clakre

Child Representative:

Watson Stafford

ORDERS

The Orders made on 17 June 2002 are discharged.
The child B E G born 3 March 1997 is to reside with the Respondent Mother.
The Mother is restrained from causing the said child to reside outside the S metropolitan area until 20 January 2003.
Until 19 January 2003, the Applicant father is to have contact with said child as follows:
(a)each alternate weekend during school term time from 6.00 pm on the Friday to 5.00 pm on the Sunday, commencing on Friday
11 October;
(b)for a period of three (3) days including three (3) nights during the December School holidays;
(c)for a period of four (4) days including four (4) nights during the month of January 2003;
(d)from 1.00 pm to 6.00 pm on Christmas Day 2002; and
(e)by telephone on one occasion each week.
From and after 20 January 2003, the Applicant Father is to have contact with the said child as follows:
(a)for the first week of each Victorian school holiday period with the exception of the December/January school holiday period;
(b)for a week during the January school holiday period commencing on the first Saturday after New Year’s Day;
(c)by telephone on at least one occasion in each week, on Father’s Day, on Christmas Day and on the child’s birthday…

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 G and M

Details

AGLC: G and M [2002] FMCAfam 364
Case: [2002] FMCAfam 364
Decision Date: 1 October 2002

CaseChat Overview and Summary

This case involved the parents of a five-year-old girl, B, with the primary dispute concerning the arrangements for her residence and contact with each parent post-separation. The mother, who currently has the primary residence of B, wished to relocate to another city with B, while the father sought to maintain the status quo. The court had to balance the child's best interests with the parents' wishes and the impact on the child's relationship with each parent.

The court had to consider several legal issues, including the child's welfare and best interests as the paramount consideration, the need for the child to maintain a relationship with both parents, and the implications of the mother's proposed relocation. The court also needed to weigh the potential exposure of the child to the father's past associations with a group linked to violence, and the impact of the relocation on the child's relationship with her father.

The court determined that the mother's proposal to relocate to another city with the child was too hasty and did not sufficiently consider the impact on the child's relationship with her father. The court believed that a period of stability in their current location would allow the father and daughter's relationship to grow, reducing the risk that block contact would not be a happy experience for the child. The court also found that the risk of the father's past associations with a violent group was not as great as presented, and that it would be in the child's best interests to attend the father's upcoming wedding. The court concluded that permitting the relocation in late January would allow the child to start a new school at the beginning of the school year, thereby starting on more or less equal terms with other students.

The court ordered that the child would reside with the mother but restrained her from relocating outside the metropolitan area until January 20, 2003. The father was granted specific contact arrangements with the child, including overnight stays and phone contact. The court also imposed conditions on the father's contact to ensure the child's safety and well-being, including restrictions on exposure to the father's past associations and drug use. The parties were directed to share the costs of the child's travel for contact purposes and to notify each other of any significant events concerning the child's health or education. The mother was required to facilitate communication between the father and the child and to provide regular updates on the child's school activities.

Orders

Orders of the court

The Orders made on 17 June 2002 are discharged.

The child B E G born 3 March 1997 is to reside with the Respondent Mother.

The Mother is restrained from causing the said child to reside outside the S metropolitan area until 20 January 2003.

Until 19 January 2003, the Applicant father is to have contact with said child as follows:

(a) each alternate weekend during school term time from 6.00 pm on the Friday to 5.00 pm on the Sunday, commencing on Friday

11 October;

(b) for a period of three (3) days including three (3) nights during the December School holidays;

(d) from 1.00 pm to 6.00 pm on Christmas Day 2002; and

(e) by telephone on one occasion each week.

From and after 20 January 2003, the Applicant Father is to have contact with the said child as follows:

(a) for the first week of each Victorian school holiday period with the exception of the December/January school holiday period;

(b) for a week during the January school holiday period commencing on the first Saturday after New Year’s Day;

(c) by telephone on at least one occasion in each week, on Father’s Day, on Christmas Day and on the child’s birthday each year;

(d) at other times when the Father is visiting M as the parties shall arrange PROVIDED THAT the Father gives the Mother 21 days notice of his intention to exercise contact in M; and

(e) on 23 February 2003 on the occasion of the Father’s wedding.

For the purpose of exercising contact pursuant to Order 5 the Mother shall deliver the said child to the Father’s residence at the commencement contact period and shall collect the said child from the Father’s residence at the conclusion of each contact period.

The Father shall ensure that either Nicole Ann P or his mother J E G is present at all times during contact.

The parties are to share equally the costs and expenses of airfares involved in the child’s travel between M and S for the purpose of exercising contact pursuant to these Orders.

The Father is restrained from:

(a) allowing the said child to attend any function organised by the B m c c;

(b) allowing the said child to attend any premises occupied by the B m c c; or

(c) allowing the said child to come into contact with any members of the B m c c with the exception of the occasion of the Father’s wedding.

10.

The Father is restrained from administering to himself any prohibited drug during or for twelve (12) hours prior to any period of contact or from permitting the said child to remain in the presence of any person administering to himself or herself any prohibited drug.

11.

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.

12.

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.

13.

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.

14.

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.

15.

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.

16.

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

17.

The Mother is to make all necessary arrangements to obtain an email facility so that the said child may communicate with the Father by email by 30 June 2003.

18.

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

19.

The Father and the Mother are each to pay the sum of $1500.00 towards the costs of the Child’s Representative in these proceedings within six (6) months from the date of these Orders.

Background

Background to the litigation

Section 68f(2)(f) – the child’s maturity, sex and background. The child is a little girl aged 5 years and 6 months. Section 68F(2)(g), et al – the need to protect the child from physical or psychological harm, family violence etc. The mother’s dislike of the B m c c and the violence she associates with it is a relevant factor. The father says that he is no longer involved, but that he maintains some old friendships. As I said earlier, the mother is the unchallenged residence parent. There is no proposal for the child to reside with the father on a full-time basis. The competing proposals involve the mother relocating to M with the child, or remaining in S. The Court is not bound to accept either proposal. There are disadvantages in each. The father’s proposal would maintain the contact in a similar way to the present arrangements, but the relationship between father and child needs to build up. The child is not able to spend any block period of contact with the father; she does not feel secure and settled with him. Paradoxically, the argument against the mother’s relocation with the child to M stems not from the fact that the child has a strong relationship with the father, but because she does not have a strong relationship with him. Whilst the expectation is that the relationship will grow with regular contact, the move to M will inhibit the relationship. Against this, the mother wishes to move to M to live with and marry a man with whom she has a relationship. The evidence is that he has a good relationship with the child, and the plan is that the mother, Mr M and the child will live in a family group. It appears that this would be a desirable course. However, the mother seems to have rushed into this idea without considering the effects on the child, especially on the child’s relationship with the father. A further period of time in S would allow the father/daughter relationship time to grow and reduce the risk that block contact would not be a happy experience, notwithstanding the child’s confidence in her grandmother and her father’s fiancee. Mr Clarke, for the Child Representative, has expressed concerns about the father’s involvement with the B with its attendant risk of exposure to violence. As the father has had to retire, so to speak, because of his disability, I am not persuaded that the risk is as great as has been submitted. I am certainly of the view that, on the whole, it would be a desirable thing for the child to attend the father’s wedding in the new year, even though some of the guests may be members of that organisation. I am satisfied, after considering the competing proposals and weighing up their advantages and disadvantages for the child, that the mother should, in the long run, be permitted to relocate to M with the child. The mother’s proposed time scale, with an intended commencement date on 1st October 2002, was precipitate, and hardly in the child’s best interests, even if this were what the mother would fervently wish. I would see that a stay in S until the New Year would allow some time for the father’s relationship with the daughter to grow. If the mother and child were to move to M in late January, the child would be able to commence at a new school at the beginning of the school year, so she would start on more or less equal terms with the other students.

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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