George & Dixon - [2022] FedCFamC2F 1647

Federal Circuit and Family Court of Australia
(DIVISION 2)
George & Dixon [2022] FedCFamC2F 1647

File number(s): MLC 15607 of 2021

Judgment of: JUDGE HARLAND

Date of judgment: 1 December 2022

Catchwords: FAMILY LAW – parenting – mother seeks to relocate with 7 year old child to Adelaide where she has support of extended family – father opposes relocation his extended family support is in Melbourne – both parents highly involved parents and child focussed – finely balanced

Legislation: Family Law Act 1975 (Cth), Part VII, ss 60CA, 60CC(2), 60CC(3), 61DA(1), 65DAA(1), 65DAA(1)(b), 65DAA(3)

Cases cited:
AMS & AIF (1999) 24 Fam LR 756

KB & TC (2005) FLC 93-224

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] 240 CLR 461

Taylor & Barker (2007) 37 Fam LR 461

U v U (2002) 211 CLR 238; (2002) FLC 93-112

Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Number of paragraphs: 102

Date of hearing: 10, 11 & 14 November 2022

Place: Melbourne

Counsel for the Applicant: Ms Colla

Solicitor for the Applicant: Nicholes Family Lawyers

Counsel for the Respondent: Ms Fisken

Solicitor for the Respondent: Barry Nilsson Lawyers
ORDERS

MLC 15607 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GEORGE

Applicant

AND:
MR DIXON

Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

1 December 2022

THE COURT ORDERS THAT:
1.The child X born in 2015 will live with each of the parties during school terms as follows:
(a)with the father from the conclusion of school each:
(i)alternate Monday (or 3:30pm if X is not at school that day) until the conclusion of school on Tuesday (or 3:30pm if X is not at school that day);
(ii)alternate Friday (or 3:30pm if X is not at school that day) until the conclusion of school on Tuesday (or 3:30pm if X is not at school that day);
(iii)at other times as agreed.

(b)with the mother at all other times.

THE COURT ORDERS BY CONSENT THAT:
2.The mother and father will have equal shared parental responsibility with respect to all decisions about major long-term issues in relation to X.
3.The father spend time with X from the conclusion of school (or 3.30pm if she does not attend school that day) on 9 December 2022, until 4.00pm on 18 December 2022.
4.The mother then spend time with X from 4.00pm on 18 December 2022, until 4.00pm on 30 December 2022.
5.The father then spend time with X from 4.00pm on 30 December 2022, until 4.00pm on 9 January 2023;
6.The mother then spend time with X from 4.00pm on 9 January 2023, until 4.00pm on 25 January 2023; and
7.The father then spend time with X from 25 January 2023, until 29 January 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy…

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 George & Dixon

Details

AGLC: George & Dixon [2022] FedCFamC2F 1647
Case: [2022] FedCFamC2F 1647
Decision Date

CaseChat Overview and Summary

This case involves an application by the mother, Ms George, to relocate with her 7-year-old daughter, X, to Adelaide, which the father, Mr Dixon, opposes. The matter was heard over three days in November 2022. The sole issue before the court was whether it is in X's best interests to relocate to Adelaide with her mother. The court considered the evidence and submissions from both parties and expert evidence from a psychologist, Dr B.

The court found that both parents have demonstrated a high level of involvement and commitment to X's upbringing and have maintained a functional co-parenting relationship. The mother's desire to relocate is driven by her longing to be closer to her family in Adelaide, while the father has established his life and support network in Melbourne. X has expressed a clear preference to not relocate, stating she would miss her father and school friends.

The court found that while relocation would provide benefits to the mother and X in terms of the mother's happiness and access to extended family, it would also result in significant loss for X in terms of reduced day-to-day involvement from both parents, particularly the father. The court concluded that the loss of having both parents actively and immersed in X's daily life outweighs the benefits of relocation. Therefore, the court determined that it is not in X's best interests to relocate to Adelaide with her mother.

The court ordered that X will continue to live with each parent on the existing shared care arrangement during school terms, with additional time arrangements for school holidays. The parents were ordered to have equal shared parental responsibility for X.

Orders