Gair & Bayles - [2023] FedCFamC2F 522

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gair & Bayles [2023] FedCFamC2F 522

File number(s): ADC 1478 of 2022

Judgment of: JUDGE JENKINS

Date of judgment: 12 May 2023

Catchwords: FAMILY LAW – parenting – relocation – two children aged 9 and 10 – children with Autism Spectrum Disorder – mother in the Armed Forces and will shortly be posted to City B – neither party has significant ties to Adelaide – relocation allowed – increase in time spending prior to relocation

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 60CC, 65DAA

Cases cited:
A & A: Relocation Approach [2000] FamCA 751

Adamson & Adamson [2014] FamCAFC 232

AMS v AIF [1999] HCA 26

Godfrey & Sanders [2007] FamCA 102

Heath & Hemming (No 2) [2011] FamCA 749

KB & TC [2005] FamCA 458

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Morgan & Miles [2007] FamCA 1230

Taylor v Barker [2007] FamCA 1246

U v U [2002] HCA 36

Division: Division 2 Family Law

Number of paragraphs: 81

Date of last submission/s: 23 March 2023

Date of hearing: 20 – 23 March 2023

Place: Adelaide

Counsel for the Applicant: Mr Tredrea

Solicitor for the Applicant: Stanley & Co Lawyers

Counsel for the Respondent: The Respondent in person
ORDERS

ADC 1478 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GAIR

Applicant

AND:
MR BAYLES

Respondent

order made by:

JUDGE JENKINS

DATE OF ORDER:

12 MAY 2023

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.By consent, the parties do have equal shared parental responsibility for the children X born in 2012 and Y born in 2014 (“the children”).
3.The children live with the mother.
4.As and from 1 July 2023 the mother be permitted to relocate the permanent residence of the children to City B.
5.The children spend time with the father as follows:
(a)Until the mother’s relocation to City B on:
(i)Each weekend from 4:00pm Saturday until 6:00pm Sunday;
(ii)Each Wednesday during school term from the conclusion of school (or 4.00pm if a non-school day) until 6:00pm; and

(b)As and from the mother’s relocation to City B:
(i)In City B, during school terms, on the third weekend of each month commencing on Friday from the conclusion of school (or 4:00pm if a non-school or childcare day) until the commencement of school on Monday (or 9:00am if a non-school day);
(ii)For one half of the short-term school holiday period, commencing in the third term school holidays, at times to be agreed between the parties in writing, or failing agreement, with the father for eight consecutive nights commencing at the conclusion of the last day of the school term;
(iii)For three consecutive weeks in the long-term school holidays as agreed between the parties; and
(iv)Otherwise as agreed between the parties in writing, with the mother to facilitate the father spending additional time in City B with the children upon at least 14 days’…

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 Gair & Bayles

Details

AGLC: Gair & Bayles [2023] FedCFamC2F 522
Case: [2023] FedCFamC2F 522
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was asked to decide on a parenting dispute between Ms Gair and Mr Bayles, who are the parents of two children with Autism Spectrum Disorder. The mother, Ms Gair, who is in the Armed Forces, has been posted to City B and wishes to relocate there with the children. The father, Mr Bayles, opposes the move and seeks that the children remain in Adelaide where they have lived most of their lives and currently attend school. The central issue before the court was whether it would be in the children's best interests to relocate to City B with their mother or to remain in Adelaide with their father. The court considered the best interests of the children under s 60CC of the Family Law Act 1975, weighing factors such as the benefit of a meaningful relationship with both parents and the need to protect the children from harm. The court also considered the additional considerations under s 60CC(3) of the Act, including the children's relationship with each parent, the capacity of each parent to provide for the children's needs, and the impact of any changes in the children's circumstances. The court found that the mother was better able to manage the children's special needs and that the father's mental health issues and past incidents of neglect made it less suitable for the children to remain in his care. The court also found that the mother's relocation was primarily for career reasons and that she had taken steps to ensure the children would have appropriate support and continuity of care in City B. The court concluded that relocation to City B with the mother was in the children's best interests, with appropriate time arrangements for the father to spend with the children. The court ordered that the children live with their mother in City B, with specific time arrangements for the father to spend with the children, including increased time before the relocation. The court also made orders for equal shared parental responsibility and communication between the parties.

Orders