FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2007] FMCAfam 27 |
| FAMILY LAW – Children – relocation – presumption of equal shared parental responsibility – rebuttal of presumption. |
| Family Law Act 1975, ss.4, 60CC, 61DA, 65DAA |
| A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF and AIF v AMS [1999] HCA 26 Cowling v Cowling (1998) FLC 92-801 Goode and Goode [2006] FamCA 1346 P & P [2006] FMCAfam 518 U and U (2002) FLC 93-112 |
| Applicant: | H |
| Respondent: | H |
| File number: | BRM5565 of 2004 |
| Judgment of: | Altobelli FM |
| Hearing date: | 23 November 2006 |
| Date of last submission: | 23 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Brasch |
| Solicitors for the Applicant: | Harrington Family Lawyers |
| Counsel for the Respondent: | Mr Burke |
| Solicitors for the Respondent: | Michael Hefford Solicitors |
ORDERS
That the mother have sole parental responsibility for the two children R and J.
That the children live with the mother.
That until such time as the mother relocates with the children from Brisbane to Cairns, the time that the father spends with the children shall be governed by the orders than were made by consent on 20 September 2005. As from the date that the mother and the children leave Brisbane to permanently reside in Cairns, those orders are vacated, and the following orders apply:
That the children spend such time with the father as may be agreed between the parties but failing agreement as follows:
i.For one week during each school holiday periods in Cairns with the father to provide to the mother one calendar month’s written notice of his intention to spend time with the children during these school holiday periods, such notice specifying the start date of the time.
ii.That upon the father’s arrival in Cairns and presentation to the mother of his return airfare receipt the mother forthwith pay to the father the cost of the return airfare;
iii.That at the same time as providing written notification of his intention to spend time in Cairns, the father also notify the mother of the address at which he will be residing for the duration of the periods and provide written confirmation in the form of a receipt that such accommodation has been reserved.
iv.That the child J return home each night to sleep at the mother’s residence with the mother to arrange for the collection of J from the father at 5:00pm each day and to return to the father’s residence at 9:00am the next morning.
If the father is unable to spend time with the children as per order 4 above, during the Easter and/or September/October school holiday period that the father spend time with the child R at all such times as may be agreed but failing agreement to include:
i.During the Easter and September/October school holiday periods for one week in Brisbane with the father to provide the mother with one calendar month’s written notice of his intention to spend time with R…
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- AGLC
- H & H [2007] FMCAfam 27
- Case
- [2007] FMCAfam 27
- Decision Date
CaseChat Overview and Summary
The court had to address several key legal issues, including the allocation of parental responsibility, the establishment of a parenting schedule that accommodated the children's new residence in Cairns, and the facilitation of communication between the children and their father. The court also needed to consider the implications of the father's limited financial capacity on the proposed arrangements.
The court concluded that the mother should have sole parental responsibility for the children. It ordered that the children live with their mother in Cairns. The court then set out a detailed parenting schedule, providing that the father would have specified visitation times during school holidays, contingent upon certain conditions, such as timely notice and the payment of travel expenses. Additionally, the court mandated that the children maintain regular communication with their father, specifying the times and methods for such communication. The court emphasised the importance of compliance with the notice and payment requirements to ensure that the visitations proceeded as ordered.
In conclusion, the court issued several orders to govern the parenting arrangements. These included the mother having sole parental responsibility, the children residing with the mother, and detailed visitation schedules for the father during school holidays, subject to conditions such as providing advance notice and covering travel costs. The court also mandated specific times for communication between the children and their father and required the mother to facilitate this communication.
Orders
Orders of the court
1.
That the mother have sole parental responsibility for the two children R and J.
2.
That the children live with the mother.
3.
That until such time as the mother relocates with the children from Brisbane to Cairns, the time that the father spends with the children shall be governed by the orders than were made by consent on 20 September 2005. As from the date that the mother and the children leave Brisbane to permanently reside in Cairns, those orders are vacated, and the following orders apply:
4.
That the children spend such time with the father as may be agreed between the parties but failing agreement as follows:
i. For one week during each school holiday periods in Cairns with the father to provide to the mother one calendar month’s written notice of his intention to spend time with the children during these school holiday periods, such notice specifying the start date of the time.
ii. That upon the father’s arrival in Cairns and presentation to the mother of his return airfare receipt the mother forthwith pay to the father the cost of the return airfare;
iii. That at the same time as providing written notification of his intention to spend time in Cairns, the father also notify the mother of the address at which he will be residing for the duration of the periods and provide written confirmation in the form of a receipt that such accommodation has been reserved.
iv. That the child J return home each night to sleep at the mother’s residence with the mother to arrange for the collection of J from the father at 5:00pm each day and to return to the father’s residence at 9:00am the next morning.
5.
If the father is unable to spend time with the children as per order 4 above, during the Easter and/or September/October school holiday period that the father spend time with the child R at all such times as may be agreed but failing agreement to include:
i. During the Easter and September/October school holiday periods for one week in Brisbane with the father to provide the mother with one calendar month’s written notice of his intention to spend time with R during this period. The father shall arrange and pay for R’s airfare from Cairns to Brisbane.
ii. That upon receiving the father’s written notice of time pursuant to this order, the mother shall arrange for and pay for R’s return airfare from Brisbane to Cairns.
6.
The mother and father will do all things necessary to facilitate and encourage the following communication taking place between the children and the father:
i. By email, letter and text message at any reasonable time that the children and the father decide; and
ii. By telephone each Tuesday and Thursday and on Father’s Day, the father’s birthday, the children’s birthdays, Easter Sunday and Christmas Day between 6:00pm and 8:00pm with the father to initiate the call on Tuesdays and the other days referred to, and the mother to facilitate the children initiating the calls on Thursdays.
7.
Without limiting the generality of the orders referred to above the obligation of the mother in Order 6 extends to either providing the children with a mobile telephone or providing to the father her home telephone number from time to time, and the obligation of the father to provide one calendar month’s notice in Orders 4 and 5 is regarded as an essential one to the intent that strict compliance with the time frame is required and failure to do so means that the time between the father and the children does not occur in accordance with these orders.
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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