GARVELL & GARVELL - [2016] FCCA 1833

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARVELL & GARVELL

[2016] FCCA 1833

Catchwords:
FAMILY LAW – Parenting – Mother seeking to relocate from (omitted), Victoria to Northern New South Wales with parties’ two children aged 10 and 6 years – if relocation not allowed Mother seeks current shared care arrangement be varied so children live primarily with her and spend alternate weekends with the Father.

HELD – Relocation not in children’s best interests – continuation of existing shared care arrangement is in children’s best interests.

Legislation:

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

Cases cited:

AMS v AIF (1999) 199 CLR 160

U & U (2002) 211 CLR 238

Taylor & Barker (2007) 37 Fam FLR 461

MRR v GR [2010] HCA 4

Cowley & Mendoza [2010] FamCA 597

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

Applicant:

MS GARVELL

Respondent:

MR GARVELL

File Number:

MLC 7210 of 2015

Judgment of:

Judge Bender

Hearing date:

20 June 2016

Date of Last Submission:

21 June 2016

Delivered at:

Melbourne

Delivered on:

22 July 2016

REPRESENTATION

Counsel for the Applicant:

Ms Wheeler

Solicitors for the Applicant:

Cahill & Rowe Family Law

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Wightons Lawyers

ORDERS

The parents have equal shared parental responsibility for the children of the relationship X born (omitted) 2005 (“X”) and Y born (omitted) 2009 (“Y”).
X and Y remain in the greater (omitted) area and live with each parent on a week about basis with changeover to be at the conclusion of school Friday (or 3:30pm if a non-school day).
X and Y’s time with each parent shall be suspended as follows:
(a)for a maximum of seven days over the long summer holidays at such times as agreed between the parties to enable each parent to holiday with X and Y for a maximum of 14 days;
(b)from 3:00pm Christmas Eve until 3:00pm Christmas Day 2016 with X and Y to be in the Father’s care and from 3:00pm Christmas Day until 3:00pm Boxing Day 2016 with X and Y to be in the Mother’s care and thereafter such arrangement to alternate each year;
(c)from 6:00pm on the Saturday before Mother’s Day or Father’s Day until 9:00am the following Monday with X and Y to spend time with the parent to whom such celebration relates;
(d)for a minimum of two hours on each of X and Y’s birthday where same falls on a school day and for a minimum of four hours where same falls on a non-school day or weekend with the parent not then caring for X and Y to spend such time with X and Y at times to be agreed between the parties and failing agreement such time will commence at 4:00pm on that day;
(e)if X and Y are not living with a parent on that parent’s birthday, then on that parent’s birthday for a minimum of two hours where same falls on a school day and for a minimum of four…

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 GARVELL & GARVELL

Details

AGLC: GARVELL & GARVELL [2016] FCCA 1833
Case: [2016] FCCA 1833
Decision Date: 22 July 2016

CaseChat Overview and Summary

In the Family Court of Australia, Judge Bender considered a dispute between the parents, referred to as the Mother and the Father, concerning their two children, X and Y, aged 10 and 6 years respectively. The Mother sought to relocate with the children from Victoria to Northern New South Wales. In the alternative, if relocation was not permitted, she sought to vary the existing shared care arrangement so that the children would primarily reside with her, with the Father having alternate weekends.

The central legal issues before the court were whether the proposed relocation of the children to Northern New South Wales was in their best interests, and if not, how the existing parenting orders should be varied to best serve those interests. The court was required to assess the impact of the proposed move on the children's relationship with both parents, their schooling, their broader community connections, and their overall well-being.

Judge Bender determined that the relocation was not in the children's best interests. The court reasoned that maintaining the existing shared care arrangement, where the children live with each parent on a week-about basis, was the most appropriate course of action to ensure the children's continued benefit from meaningful involvement with both parents. The court's decision was guided by the principle that the paramount consideration in parenting matters is the best interests of the child.

Consequently, the court ordered that the parents continue to have equal shared parental responsibility for X and Y. The children are to remain in the greater Melbourne area and live with each parent on a week-about basis, with changeovers occurring at the conclusion of school on Fridays. The orders also detailed specific arrangements for holidays, birthdays, communication between parents and children, and other important aspects of the children's care and upbringing, including specific restraints on the Father regarding contact with a Mr J and on both parents regarding discussing proceedings or denigrating each other to the children.

Orders

Orders of the court

The parents have equal shared parental responsibility for the children of the relationship X born (omitted) 2005 (“X”) and Y born (omitted) 2009 (“Y”).

X and Y remain in the greater (omitted) area and live with each parent on a week about basis with changeover to be at the conclusion of school Friday (or 3:30pm if a non-school day).

X and Y’s time with each parent shall be suspended as follows:

(a) for a maximum of seven days over the long summer holidays at such times as agreed between the parties to enable each parent to holiday with X and Y for a maximum of 14 days;

(b) from 3:00pm Christmas Eve until 3:00pm Christmas Day 2016 with X and Y to be in the Father’s care and from 3:00pm Christmas Day until 3:00pm Boxing Day 2016 with X and Y to be in the Mother’s care and thereafter such arrangement to alternate each year;

(c) from 6:00pm on the Saturday before Mother’s Day or Father’s Day until 9:00am the following Monday with X and Y to spend time with the parent to whom such celebration relates;

(d) for a minimum of two hours on each of X and Y’s birthday where same falls on a school day and for a minimum of four hours where same falls on a non-school day or weekend with the parent not then caring for X and Y to spend such time with X and Y at times to be agreed between the parties and failing agreement such time will commence at 4:00pm on that day;

(e) if X and Y are not living with a parent on that parent’s birthday, then on that parent’s birthday for a minimum of two hours where same falls on a school day and for a minimum of four hours on a non-school day with such parent at times agreed between the parents and failing agreement such time will commence at 4.00pm on that day; and

(f) such other times as agreed between the parties in writing.

Changeover shall occur at X and Y’s schools on a school day and for all other occasions the Mother shall collect X and Y from the Father’s residence at the commencement of her time and the Father shall collect X and Y from the Mother’s residence at the commencement of his time unless otherwise agreed between the parents in writing.

The Mother be at liberty to telephone or Skype X and Y on two occasions each week whilst they are in the Father’s care.

The Father be at liberty to telephone or Skype X and Y on two occasions each week whilst they are in the Mother’s care.

The parents shall facilitate X or Y contacting the other parent upon X or Y’s reasonable request to do so.

Each parent forthwith notify the other parent of any serious illness or injury to X or Y whilst in their respective care and each parent shall notify the other of any medical professional, counsellor or other health service provider upon whom either X or Y attend and each parent shall be at liberty to attend upon such professional either with or in the presence of X and Y or either of them.

The parents shall exchange information pertaining to X and Y and their needs in writing either by email, text or fax save in the event of an emergency when such communication shall occur by telephone.

10.

Neither parent will expose X and Y to adult issues and conflict and both parents are restrained from requiring X and Y to communicate information to the other parent.

11.

Each parent keep the other informed at all times of their current residential address and contact telephone number.

12.

Each parent be and is hereby restrained from:

(a) discussing with X and Y or with any other person in X and Y’s presence details of these proceedings; and

(b) denigrating each other to X or Y or speaking with X or Y or to any other person in X or Y’s presence in derogatory terms about the other parent or members of the other parent’s household.

13.

Neither parent shall bring X or Y into contact with any person affected by illicit substances or to illicit substances and the equipment associated with their use during any period of time when they are responsible for X and Y’s care.

14.

The Father be restrained from bringing X or Y into contact with Mr J.

15.

Each parent:

(a) attend the Parenting Orders Program at (omitted) (“the Program”) (phone: (omitted)) for assessment and family counselling;

(b) follow the recommendations of the Program administrator; and

16.

On the day either parent first attends the Program for assessment, that parent provide to the Program administrator a copy of the Family Report prepared by Ms K dated 16 May 2016.

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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