Gareth and Naylor - [2019] FamCA 561

FAMILY COURT OF AUSTRALIA

GARETH & NAYLOR

[2019] FamCA 561

FAMILY LAW – PARENTING – application for international relocation – where the Mother lives in Perth and the Father lives in C Town – where the Mother wants to relocate with the child to the UK – where the Father wants the Mother to move closer to C Town – where the Mother alleges family violence – where family violence is not established – impact of relocation on Mother’s mental health – impact of relocation on relationship with Father and connection to culture.

Family Law Act 1975 (Cth) – ss 4AB, 60CC(3)(h), 60CC(6), 60CA, 60B, 60B(2)(e), 60CC, 60CC(3)(h), 60CC(6), 61DA, 65DAA, 65DAC and 61F

Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, [1987] ATS 2 (entered into force 1 December 1983).

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Adamson & Adamson (2014) FLC 93-622
AIF v AMS [1999] HCA 26
B & F [1998] FamCA 239
Davis & Davis and Anor(2008) 38 Fam LR 671
Donnell & Dovey [2010] FamCAFC 15
Hort & Verran (2009) FLC 93-418
Morgan & Miles (2007) FLC 93-343
Taylor and Barker (2007) FLC 93-345
U & U (2002) 211 CLR 238

APPLICANT:

Mr Gareth

RESPONDENT:

Ms Naylor

FILE NUMBER:

CAC

1355

2017

DATE DELIVERED:

16 August 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

13 - 16 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

Eden Legal

COUNSEL FOR THE RESPONDENT:

Mr Smith

SOLICITOR FOR THE RESPONDENT:

Legal Aid, ACT

Orders

That all previous Orders are discharged.
That Ms Naylor (“the Mother”) and Mr Gareth (“the Father”) have equal shared parental responsibility for the child B, born … 2015.
That B lives with the Mother.
That the Mother is permitted to relocate the residence of B to the UK.
That B's United Kingdom passport, being held in the Family Court of Australia Registry in Canberra, is to be released to the Mother.
That the Mother is entitled to hold B's United Kingdom passport.
The Mother is entitled to remove B from the Commonwealth of Australia.
That following the relocation outlined at Order (4), the Father spend time and communicate with B as agreed between the parties, but failing agreement as follows:
(a) By electronic communication:
(i)The Mother is to make B available for telephone or video communication (such as FaceTime) on at least three occasions each week for a period of no less than fifteen minutes on each occasion, at such times as may be agreed between the parents, but failing agreement each Monday, Wednesday, Friday and Sunday between 7.00am and 8.00am the UK time, with the Father to initiate such communications.
(ii)To facilitate the above communication the Mother is to maintain an operative electronic video communication facility and is to keep the Father advised of the contact details for the use of such facility.
(b) In the UK:
(i)For a period of…

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 Gareth and Naylor

Details

AGLC: Gareth and Naylor [2019] FamCA 561
Case: [2019] FamCA 561
Decision Date: 16 August 2019

CaseChat Overview and Summary

In the matter of *Gareth and Naylor*, heard by Gill J, the dispute concerned parenting arrangements for a child born in 2015. The orders indicate a disagreement between the parents, Mr Gareth ("the Father") and Ms Naylor ("the Mother"), regarding the child's residence and the Mother's proposed relocation with the child to the United Kingdom.

The court was required to determine the appropriate parenting orders, specifically addressing issues of parental responsibility, the child's living arrangements, and the Mother's application to relocate the child to the UK. Further, the court needed to establish a framework for the Father's time with and communication with the child, both before and after any relocation, and to consider provisions for the child's welfare and the parents' ongoing communication and information sharing.

Gill J ordered that both parents have equal shared parental responsibility for the child. The child was to live with the Mother, who was permitted to relocate the child to the UK. The court directed that the child's UK passport be released to the Mother, who was entitled to hold it and remove the child from Australia. Detailed provisions were made for the Father's time with and communication with the child, including regular electronic communication and periods of face-to-face contact in both the UK and Australia, with specific arrangements for travel costs and notification. The orders also included provisions restraining derogatory comments about either parent to or in the presence of the child, requirements for notification of address changes, and monthly summaries of the child's care, welfare, and development to be provided by the Mother to the Father. The court also requested the removal of the child from the Airport Watch List.

Orders

Orders of the court

That all previous Orders are discharged.

That Ms Naylor (“the Mother”) and Mr Gareth (“the Father”) have equal shared parental responsibility for the child B, born … 2015.

That B lives with the Mother.

That the Mother is permitted to relocate the residence of B to the UK.

That B's United Kingdom passport, being held in the Family Court of Australia Registry in Canberra, is to be released to the Mother.

That the Mother is entitled to hold B's United Kingdom passport.

The Mother is entitled to remove B from the Commonwealth of Australia.

That following the relocation outlined at Order (4), the Father spend time and communicate with B as agreed between the parties, but failing agreement as follows:

(a) By electronic communication:

(i) The Mother is to make B available for telephone or video communication (such as FaceTime) on at least three occasions each week for a period of no less than fifteen minutes on each occasion, at such times as may be agreed between the parents, but failing agreement each Monday, Wednesday, Friday and Sunday between 7.00am and 8.00am the UK time, with the Father to initiate such communications.

(ii) To facilitate the above communication the Mother is to maintain an operative electronic video communication facility and is to keep the Father advised of the contact details for the use of such facility.

(b) In the UK:

(i) For a period of up to fourteen days on two occasions each year in the UK occurring on dates nominated by the Father, subject to the following:

(ii) Such days are to commence on the first Saturday of a UK school holiday period (whether or not B has commenced attending school);

(iii) The Father’s time is to commence at 9.00am on the first day of the period and is to conclude at 5.00pm on the last day of the period;

(iv) The Father shall collect and return B to the Mother’s residence;

(v) The Father shall notify the Mother in writing of the number of days he shall spend with B no less than 30 days prior to the commencement of his time;

(vi) The Father is solely responsible for the cost of his travel and accommodation for such visits.

(i) For a period of fourteen days on one occasion each year in Australia, during times as agreed between the parties, but failing agreement commencing on the second Saturday of the long UK Summer School Holidays (regardless of whether B has commenced school);

(ii) The Father’s time is to commence at 9.00am on the first day of the period and is to conclude at 5.00pm on the last day of the period;

(iii) The Mother shall deliver B to, and collect B from the Father’s residence at the start and the end of such periods;

(iv) The Mother is solely responsible for the cost of B and the Mother’s travel to and from Australia and accommodation in Australia other than B’s accommodation during the period that B is with the Father;

(v) Should the Mother travel to Australia with B in addition to those times outlined above, the Mother is to provide the Father with no less than 30 days’ notice of her intention to do so and the Father shall be entitled to spend time with B for a period of seven days, with the Mother to deliver and collect B from the Father’s residence.

(vi) For a period of seven days prior to the Mother’s removal of B from Australia pursuant to these Orders, with the Mother to deliver B to, and collect her from the Father’s address at the start and end of the time.

That each party is restrained from speaking about the other in a derogatory manner, either to B or in B’s presence or allowing any other person to do so.

10.

That each party shall notify the other within 7 days of any change of address, telephone number, or email and shall provide the updated contact details to the other party forthwith.

11.

That the Mother shall provide to the Father by email a monthly summary of B’s care, welfare and development with such matters including but not limited to:

(a) Photos of B;

(b) B’s participation in sporting activities and sporting achievements;

(d) Any medical issues experienced by B.

12.

That the Mother keep the Father informed of the particulars (including name, address and telephone number) of B’s:

(a) Residential address;

(b) Doctor and other treating health professionals;

(d) School.

13.

That the Mother ensure that the Father’s name and contact particulars are recorded with B’s:

(a) Doctor and other treating health professionals;

(b) Day care centre; and

14.

Each party shall provide all necessary authorities to enable the other party to receive information about B from B’s school and medical practitioners.

15.

Each party shall notify the other as soon as practicable, in the event of any illness or injury occurring to B whilst in their care and provide full particulars of any medical practitioner, health service provider or health care institution attended by B and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning B or to visit B in any such institution.

16.

It is requested that the Commissioner of the Australian Federal Police remove B’s name from the Airport Watch List.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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