Hahn and Trillin - [2014] FCCA 2426

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAHN & TRILLIN

[2014] FCCA 2426

Catchwords:
FAMILY LAW – Parenting – application for final parenting orders – mother seeks to relocate interstate – father opposes the mother’s relocation.

Legislation:

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

Taylor v Barker (2007) 37 Fam FLR 461
Cowley & Mendoza [2010] FamCA 597
MRR v GR [2010] HCA 4
Heath v Hemming (No.2) [2011] FamCA 749
Sigley & Evor (2011) 44 Fam LR 439

Applicant:

MS HAHN

Respondent:

MR TRILLIN

File Number:

MLC 6863 of 2012

Judgment of:

Judge Bender

Hearing date:

10 October 2014

Date of Last Submission:

13 October 2014

Delivered at:

Melbourne

Delivered on:

24 October 2014

REPRESENTATION

Counsel for the Applicant:

Ms Carter

Solicitors for the Applicant:

HQ Law

Counsel for the Respondent:

Ms Stoikovska

Solicitors for the Respondent:

Lander & Rogers

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child [X] born [omitted] 2008 (“[X]”).
[X] live with the mother.
Upon the mother’s partner Mr W receiving and accepting a written offer of employment as [omitted] with his employer [M] Pty Ltd (“the offer”) and on the condition that the offer is made and accepted on or before 30 June 2015, the mother be permitted to relocate to Hobart with [X].
In the event the mother’s partner is not offered the position of [omitted] with his employer [M] Pty Ltd by 30 June 2015, the mother is not permitted to relocate to Hobart with [X].
Upon [X] relocating to Hobart he spend time and communicate with the father as follows:
(a)subject to order 7 herein, in Victoria for the fourth and eighth weekend in each of the Tasmanian school terms, from 7.00pm Friday to 4.00pm Sunday or the closest time that a flight arrives from or to Hobart.
(b)in Hobart for the second and sixth weekend in each Tasmanian school term from 7.00pm Friday to 7.00pm Sunday or the closest time a flight arrives to or from Hobart;
(c)in Victoria for the first and third term holidays from 7.00pm Friday at the conclusion of the Tasmanian school term until 5.00pm of the last Wednesday of the school holidays or as is otherwise required so that the time includes the period during which the Victorian and Tasmanian school term holidays coincide;

(d)in Victoria for the June/July school term holidays for one week by agreement and failing agreement:
(i)in odd years in the week that [X]’s birthday falls from 5.00pm Friday to 5.00pm the following Saturday or the closest time a flight arrives from or to Hobart.
(ii)in even numbered years in the week [X]’s birthday does not fall, from 5.00pm Friday to 5.00pm the following Saturday or the closest time a flight arrives from or to Hobart.

(e)in Victoria for half of the long summer vacation as agreed and failing agreement;
(i)in even numbered years from 5.00pm 23 December to 5.00pm 12 January;
(ii)in odd numbered years from 5.00pm 2 January to 5.00pm

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 Hahn and Trillin

Details

AGLC: Hahn and Trillin [2014] FCCA 2426
Case: [2014] FCCA 2426
Decision Date: 24 October 2014

CaseChat Overview and Summary

In the matter of *Hahn and Trillin*, heard before Judge Bender, the dispute concerned parenting orders for the child [X]. The mother sought to relocate with [X] to Hobart, Tasmania, contingent on her partner securing employment there. The father opposed this relocation.

The court was required to determine whether to discharge existing parenting orders and, if so, what new orders should be made regarding the parental responsibility for [X], [X]'s living arrangements, and the time [X] would spend with each parent. A key issue was the mother's proposed relocation to Hobart and the conditions under which it would be permitted, as well as the specific arrangements for [X]'s time with each parent and the associated travel costs.

The court ordered the discharge of all previous parenting orders. It established equal shared parental responsibility for [X] and ordered that [X] live with the mother. Crucially, the mother was permitted to relocate to Hobart with [X] only if her partner received and accepted a written offer of employment by 30 June 2015. If this condition was not met, the relocation would not be permitted. Detailed provisions were made for [X]'s time with the father, including specific weekend and holiday arrangements in both Victoria and Hobart, with provisions for travel costs and communication. The court also ordered that the mother would not require the father to pay child support if the relocation occurred, allowing him to offset travel costs.

Orders

Orders of the court

All previous parenting orders be discharged.

The parties have equal shared parental responsibility for the child [X] born [omitted] 2008 (“[X]”).

[X] live with the mother.

Upon the mother’s partner Mr W receiving and accepting a written offer of employment as [omitted] with his employer [M] Pty Ltd (“the offer”) and on the condition that the offer is made and accepted on or before 30 June 2015, the mother be permitted to relocate to Hobart with [X].

In the event the mother’s partner is not offered the position of [omitted] with his employer [M] Pty Ltd by 30 June 2015, the mother is not permitted to relocate to Hobart with [X].

Upon [X] relocating to Hobart he spend time and communicate with the father as follows:

(a) subject to order 7 herein, in Victoria for the fourth and eighth weekend in each of the Tasmanian school terms, from 7.00pm Friday to 4.00pm Sunday or the closest time that a flight arrives from or to Hobart.

(b) in Hobart for the second and sixth weekend in each Tasmanian school term from 7.00pm Friday to 7.00pm Sunday or the closest time a flight arrives to or from Hobart;

(c) in Victoria for the first and third term holidays from 7.00pm Friday at the conclusion of the Tasmanian school term until 5.00pm of the last Wednesday of the school holidays or as is otherwise required so that the time includes the period during which the Victorian and Tasmanian school term holidays coincide;

(d) in Victoria for the June/July school term holidays for one week by agreement and failing agreement:

(i) in odd years in the week that [X]’s birthday falls from 5.00pm Friday to 5.00pm the following Saturday or the closest time a flight arrives from or to Hobart.

(ii) in even numbered years in the week [X]’s birthday does not fall, from 5.00pm Friday to 5.00pm the following Saturday or the closest time a flight arrives from or to Hobart.

(e) in Victoria for half of the long summer vacation as agreed and failing agreement;

(i) in even numbered years from 5.00pm 23 December to 5.00pm 12 January;

(ii) in odd numbered years from 5.00pm 2 January to 5.00pm

22 January.

(f) upon the father providing the mother with seven days’ notice and the wife not unreasonably refusing same, any further weekend in Hobart from 5.00pm Friday to 5.00pm Sunday that the father travels to Hobart.

(g) by telephone, Skype or other viable telecommunication medium upon the father’s or [X]’s reasonable election at any reasonable time but no less than three times each week for up to 30 minutes duration.

(h) such further or other times as agreed between the parties.

The weekends [X] spends with the father pursuant to order 6(a) herein shall be adjusted to ensure [X] spends time with the father in Victoria on any long weekend common to both Victoria and Tasmania and on the Father’s Day weekend and to ensure [X] is in Hobart on the Mother’s Day weekend.

When [X] is travelling to Victoria to spend time with the father pursuant to these orders, the mother shall pay the cost of [X]’s flights between Hobart and Melbourne and will purchase the tickets and provide copies of them to the father at least six weeks prior to the flight. The father or his agent shall collect [X] from and return [X] to Melbourne airport.

When [X] is spending time with the father in Hobart pursuant to these orders, the father shall be responsible for the costs of his and [X]’s travel and accommodation.

10.

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

11.

The father be permitted to attend all school events relating to [X] normally attended by parents and receive at his expense all school reports, school photograph order forms and newsletters.

12.

Each party shall advise the other of any serious illness or injury suffered by [X] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

AND THE COURT NOTES THAT:

A. The mother has agreed that in the event she and [X] relocate to Hobart the mother shall not require the father to pay child support for [X] to enable the father to utilise those monies to offset the costs of the father spending time with [X] in Hobart.

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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