HAMMER & PALMER - [2011] FMCAfam 14

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAMMER & PALMER

[2011] FMCAfam 14

FAMILY LAW – Parenting – relocation.

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

AMS v AIF (1999) 24 Fam LR 756
Rice & Asplund (1979) 6 FamLR 570; FLC 90-725
Bennett (1991) FLC 92-191
D & Y (1995) FLC 92-581
SPS & PLS [2008] FamCAFC 16

King & Finneran [2001] FamCA 344, (2001) FLC 93-079
MRR v GR [2010] HCA 4

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755
Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
Taylor v Barker (2008) 37 Fam LR 461
Mazorski v Albright (2008) 37 Fam LR 518

Applicant:

MS HAMMER

Respondent:

MR PALMER

File Number:

NCC 1669 of 2007

Judgment of:

Lapthorn FM

Hearing date:

22 December 2010

Date of Last Submission:

22 December 2010

Delivered at:

Brisbane

Delivered on:

17 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Kelly

Solicitors for the Applicant:

Bridge St Lawyers

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Rice More & Gibson Solicitors

ORDERS

That the existing orders dated 28 May 2008 be discharged.
That the mother and father have equal shared parental responsibility for the long term care, welfare and development of the child, [X] born [in] 2004.
That the child [X] born [in] 2004 live with the mother.
That the mother be permitted to relocate the child’s primary place of residence to [B] in the State of Victoria.
That the child spend time and communicate with the father as follows:
(a)On the fifth weekend of each school term in Melbourne from Friday 6.30pm to Sunday 5.00pm;
(b)From 12 noon on the first day after the child’s last day at school for terms one and three each year until 12 noon on the day immediately prior to the day on which the child is required to return to school for the commencement of terms two and four;
(c)For ten days at the end of the second term each year from 12 noon on the first Monday of the holidays to 12 noon on the tenth day thereafter;
(d)For half of all Christmas school holidays being the first half in even numbered years and the second half in odd numbered years;
(e)By telephone and internet communication at all reasonable times;
(f)Other times as agreed between the parties.
That for the purposes of facilitating the father’s time with the child, the mother or her nominee shall meet the father or his nominee at Sydney Airport at the start and end of each period of time spent in order 5(b), (c) and (d).
That for the purposes of the father spending time with the child in order 5(a), the mother or her nominee shall meet the father at Southern Cross Railway Station in Melbourne at the start and conclusion of the time spent.
That each party bear their own costs in delivering/collecting…

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 HAMMER & PALMER

Details

AGLC: HAMMER & PALMER [2011] FMCAfam 14
Case: [2011] FMCAfam 14
Decision Date: 17 January 2011

CaseChat Overview and Summary

In the Family Court of Australia, the matter between Hammer and Palmer, concerning parenting arrangements for their child, [X], was heard. The parents, who were previously married, were now divorced and were in disagreement regarding the living arrangements for their child. This case involved the determination of shared parental responsibility and specific time arrangements for the father’s visitation with the child, along with the mother’s intention to relocate to Victoria. The primary concern was to ensure the child's welfare and development were prioritised in the new arrangements.

The court had to decide whether the mother should be permitted to relocate with the child to Victoria and, if so, what specific visitation arrangements should be made for the father. The court also had to determine the extent of the father's involvement in the child's life, including the frequency and nature of his visitation rights. Additionally, the court was required to establish whether the proposed arrangements would be in the best interest of the child, considering the parents' capabilities and the child's needs.

The court determined that the mother's relocation to Victoria was in the best interest of the child, acknowledging the benefits of the move for the child's long-term welfare. The court also concluded that the father should have substantial visitation rights, including overnight stays, school term breaks, and holiday periods. The detailed schedule was designed to ensure the father maintained a significant role in the child's life while living apart. The court emphasised the importance of both parents facilitating communication and cooperation to support the child's relationship with both parents. The orders also included provisions for the use of technology to maintain contact and shared responsibilities regarding the child's education and health.

The final orders of the court granted the mother permission to relocate with the child to Victoria, established a comprehensive visitation schedule for the father, and detailed the responsibilities of both parents to ensure the child's best interests were met. Both parents were also directed to facilitate communication and cooperation, and to share information regarding the child's health, education, and general welfare.

Orders

Orders of the court

That the existing orders dated 28 May 2008 be discharged.

That the mother and father have equal shared parental responsibility for the long term care, welfare and development of the child, [X] born [in] 2004.

That the child [X] born [in] 2004 live with the mother.

That the mother be permitted to relocate the child’s primary place of residence to [B] in the State of Victoria.

That the child spend time and communicate with the father as follows:

(a) On the fifth weekend of each school term in Melbourne from Friday 6.30pm to Sunday 5.00pm;

(b) From 12 noon on the first day after the child’s last day at school for terms one and three each year until 12 noon on the day immediately prior to the day on which the child is required to return to school for the commencement of terms two and four;

(c) For ten days at the end of the second term each year from 12 noon on the first Monday of the holidays to 12 noon on the tenth day thereafter;

(d) For half of all Christmas school holidays being the first half in even numbered years and the second half in odd numbered years;

(e) By telephone and internet communication at all reasonable times;

(f) Other times as agreed between the parties.

That for the purposes of facilitating the father’s time with the child, the mother or her nominee shall meet the father or his nominee at Sydney Airport at the start and end of each period of time spent in order 5(b), (c) and (d).

That for the purposes of the father spending time with the child in order 5(a), the mother or her nominee shall meet the father at Southern Cross Railway Station in Melbourne at the start and conclusion of the time spent.

That each party bear their own costs in delivering/collecting the child to/from Sydney Airport and Southern Cross Railway Station in Melbourne.

That each party within 28 days of the mother relocating the child to Victoria, shall install a camera and Skype program at their own expense to enable the father and child to communicate via Skype.

10.

That the mother and father each:

(a) Give all consents and authorities to allow the school of the child to provide to each parent any school photographs, reports, notices or newsletters specific to the child;

(b) Forthwith notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care and provide the name of the hospital, treating medical practitioner and/or medical facility that provided the medical treatment for the child;

(c) Give all consents and authorities to any treating medical practitioner to provide any medical information for the child to the other parent;

(d) Not prevent or hinder each party from attending at the child’s school for any functions relating to the child;

(e) Not denigrate the other party or the other party’s family or the other party’s associates to the child or in the presence of the child, nor allow any third party to denigrate such persons to the child or within the presence of the child;

(f) Keep the other party advised of any changes to their residential address and telephone contact numbers within 7 days of any change.

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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