GTS & DMS - [2007] FMCAfam 363

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GTS & DMS

[2007] FMCAfam 363

FAMILY LAW – Children – parenting order – relocation – consideration of factors.

FAMILY LAW – Practice and Procedure – evidence by telephone link.

Domestic Violence Protection Act, 1989 (Qld)
Family Law Act 1975 (Cth), ss.60CC(2), (3), and (4), 61DA, 65DAA, 65DAE and 65DC
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

B & B [2007] FMCAfam 82
Goode & Goode [2006] FamCA 1346
M & K [2007] FMCAfam 25
PS & OS [2007] FMCAfam 285

Altobelli FM “The search for wisdom: relocation in the era of shared parental responsibility”, paper to be delivered at 10^th Australian Family Lawyers Conference, 8-13 June 2007

Applicant:

GTS

Respondent:

DMS

File Number:

BRC 2366 of 2007

Judgment of:

Lucev FM

Hearing date:

8 May 2007

Date of Last Submission:

8 May 2007

Delivered at:

Brisbane

Delivered on:

8 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr M. Foley

Solicitors for the Applicant:

Rowell Gill & Brown

Counsel for the Respondent:

Ms. M. Howe

Solicitors for the Respondent:

Journey Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr T.F. Jordan

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That all previous parenting orders in this matter be discharged.
That the Father and the Mother have equal shared parental responsibility for the Child.
That the Child live with the Father.
That for the purposes of enabling the Child to live with the Father, the Father shall pre-pay an airfare from Brisbane to Adelaide for the Child, that airfare to provide for the Child to travel from Brisbane to Adelaide no earlier than 9.00 am on 11 June 2007 and no later than 4.00 pm on 15 June 2007.
That the Child spend time with the Mother as follows:
(a)from noon on the first Saturday of each of the April, June/July and September/October school holidays to noon on the second Tuesday of those holidays;
(b)from:
(i)noon on 23 December 2007 to noon on 22 January 2008;
(ii)noon on 2 January 2009 to noon on 27 January 2009;
(iii)noon on 23 December 2009 to noon on 22 January 2010; and
(iv)noon on 2 January 2011 to noon on 27 January 2011; and
(c)at such other times as the Mother and Father agree.
That for the purposes of Order 4:
(a)the Father shall pre-pay airfares for the Child to travel from Adelaide to Brisbane to spend time with the Mother, and shall do so at least fourteen (14) days prior to the travel and then provide forthwith a copy of the itinerary to the Mother; and
(b)the Mother shall pre-pay airfares for the Child to travel from Brisbane to Adelaide to return to live with the Father, and shall do so at least fourteen (14) days prior to the travel and then provide forthwith a copy of the itinerary to the Father.
That the Child be allowed telephone contact with:
(a)Mother at all reasonable times when living with the Father; and
(b)Father at…

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 GTS & DMS

Details

AGLC: GTS & DMS [2007] FMCAfam 363
Case: [2007] FMCAfam 363
Decision Date: 8 June 2007

CaseChat Overview and Summary

In this family law matter, GTS & DMS, the Family Court of Australia was tasked with determining parenting arrangements for a child between the Father and the Mother. The primary concern revolved around the Mother's intention to relocate to Adelaide, which raised issues about the child's living arrangements and time spent with both parents. The Father opposed the relocation, arguing that it would significantly disrupt the child's life and his ability to maintain a meaningful relationship with the child.

The legal issues that the court had to address included whether the Mother's proposed relocation was in the best interests of the child, and if so, what parenting orders should be made to accommodate the relocation while ensuring the child's welfare. The court also had to consider the evidence presented by both parties, including the child's preference, and how to facilitate the child's continued relationship with both parents despite the relocation. The court further had to decide on the practical aspects of implementing the orders, such as the pre-payment of airfares and the scheduling of time spent with each parent.

The court concluded that the Mother's relocation was in the best interests of the child, taking into account various factors such as the child's existing ties to Adelaide, the benefits of the relocation to the Mother's career, and the potential for the child to maintain a close relationship with the Father through regular visits and contact. The court also emphasised the importance of both parents ensuring that the child's health, education, and welfare were adequately managed and communicated between them. The orders made reflect a balanced approach, aiming to provide stability and continuity in the child's life while respecting the rights and responsibilities of both parents.

The final orders include the discharge of previous parenting orders, the establishment of equal shared parental responsibility, and specific arrangements for the child to live primarily with the Father, with detailed provisions for the Mother's visitation and contact times, as well as the pre-payment of airfares for travel between Brisbane and Adelaide. The orders also cover aspects of communication, health information sharing, and the requirement for both parents to refrain from negative remarks about each other in front of the child.

Orders

Orders of the court

That all previous parenting orders in this matter be discharged.

That the Father and the Mother have equal shared parental responsibility for the Child.

That the Child live with the Father.

That for the purposes of enabling the Child to live with the Father, the Father shall pre-pay an airfare from Brisbane to Adelaide for the Child, that airfare to provide for the Child to travel from Brisbane to Adelaide no earlier than 9.00 am on 11 June 2007 and no later than 4.00 pm on 15 June 2007.

That the Child spend time with the Mother as follows:

(a) from noon on the first Saturday of each of the April, June/July and September/October school holidays to noon on the second Tuesday of those holidays;

(b) from:

(i) noon on 23 December 2007 to noon on 22 January 2008;

(ii) noon on 2 January 2009 to noon on 27 January 2009;

(iii) noon on 23 December 2009 to noon on 22 January 2010; and

(iv) noon on 2 January 2011 to noon on 27 January 2011; and

That for the purposes of Order 4:

(a) the Father shall pre-pay airfares for the Child to travel from Adelaide to Brisbane to spend time with the Mother, and shall do so at least fourteen (14) days prior to the travel and then provide forthwith a copy of the itinerary to the Mother; and

(b) the Mother shall pre-pay airfares for the Child to travel from Brisbane to Adelaide to return to live with the Father, and shall do so at least fourteen (14) days prior to the travel and then provide forthwith a copy of the itinerary to the Father.

That the Child be allowed telephone contact with:

(a) Mother at all reasonable times when living with the Father; and

(b) Father at all reasonable times when spending time with the Mother;

(c) either Mother or Father respectively, at the initiative of the Child, at any time on any day between the hours of 8.00 am Central Standard Time (“CST”) (8.30 am Eastern Standard Time (“EST”)) and 11.00 pm CST (11.30 pm EST).

The parties shall keep each other informed about their residential address and telephone numbers within 48 hours of any change.

This Order shall operate as an authority to any schools to provide to the parties (at their cost) copies of all school newsletters, reports, photographs, certificates and any notes from the school involving the Child as they may reasonably request.

10.

The parties shall be entitled to participate in all aspects of the Child’s schooling.

11.

The parties shall notify the other party of the name, address and telephone number of any Medical Practitioner or other professional that they take the child to, and these Orders authorise the Medical Practitioner or other professional to release information concerning the Child’s health or welfare to both the Mother and the Father.

12.

The parties shall notify each other as soon as practicable should the Child suffer any serious illness or be hospitalised.

13.

The parties shall keep each other informed generally as to the Child’s health.

14.

That neither Father or Mother denigrate the other within the hearing of the Child.

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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