FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAMRICK & HAMRICK | [2010] FMCAfam 815 |
| FAMILY LAW – Parenting – relocation – best interests of children – significant and substantial time required – whether living in Western Australia will adversely affect the children’s present relationship with the father – presumption of equal shared parental responsibility not rebutted – significance of need for regular physical interaction between father and children – whether relationship can be fostered and developed without regular physical interaction – consideration of psychological effects upon mother if unable to relocation – consideration of psychological effects upon father if relocation allowed – determination that relocation is not in children’s best interests – arrangements for graduated increase in substantial and significant time with father leading to equal time between parents. PROPERTY – Assessment of matrimonial pool – consideration of financial and non-financial contributions – adjustment pursuant to s.75(2) – consideration of justice and equity of orders. |
| Family Law Act 1975, ss.60B, 60CA, 60CB, 60CC, 61DA, 65D, 65DAA, 75(2), 79 |
| MRR & GR (2010) 263 ALR 368 Goode v Goode (2006) FLC 93-286 U v U (2002) 211 CLR 238 |
| Applicant: | MS HAMRICK |
| Respondent: | MR HAMRICK |
| File Number: | TVC 418 of 2009 |
| Judgment of: | Coker FM |
| Hearing dates: | 28 & 29 July 2010 |
| Date of Last Submission: | 29 July 2010 |
| Delivered at: | Townsville |
| Delivered on: | 5 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Brad Robins Legal Centre |
| Counsel for the Respondent: | Mr Fellows |
| Solicitors for the Respondent: | Wilson Ryan & Grose |
ORDERS
That all previous orders be dismissed.
That the parents have equal shared parental responsibility in relation to the major long term issues for the children, [X] born [in] 2005 and [Y] born [in] 2007.
That without limiting the parental responsibility of either parent pursuant to paragraph (2) of these orders, each parent keep the other parent informed of and properly consult with the other with respect to any major long-term issues affecting the children. For the purposes of these orders, “major long-term issues” include:
(a)the children’s education (both current and future);
(b)the children’s religious and cultural upbringing;
(c)the children’s health, including that except for emergencies, neither party shall take the children to any health professional without first informing the other;
(d)the health of each party, including any issues which may impact on the ability of the wife or the husband to care for the children;
(e)the names by…
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- AGLC
- HAMRICK & HAMRICK [2010] FMCAfam 815
- Case
- [2010] FMCAfam 815
- Decision Date
CaseChat Overview and Summary
The court had to decide several key legal issues, including whether relocating to Western Australia was in the children’s best interests and whether the presumption of equal shared parental responsibility could be rebutted. The court also examined the necessity of regular physical interaction between the father and the children, as well as the psychological effects on both parents if relocation was permitted or denied. The court further had to consider the property pool, financial and non-financial contributions, and adjustments under section 75(2) of the Family Law Act 1975.
In its reasoning, the court determined that relocating to Western Australia was not in the children’s best interests due to the potential adverse effects on the father-child relationship. The court found that the relationship could be fostered and developed without regular physical interaction. It also considered the psychological effects on both parents, leading to the conclusion that relocation was not appropriate. Consequently, the court ordered that the children remain in Townsville, with a gradual increase in the father’s time with them. Both parents were assigned equal shared parental responsibility for major long-term issues concerning the children, while day-to-day care responsibilities were allocated based on the children’s residence with each parent. The court also outlined specific arrangements for the children’s time with each parent, including school holidays and special occasions.
The court’s final orders included dismissing all previous orders and assigning equal shared parental responsibility to both parents. The children were to live with the mother, with the father’s time with them gradually increasing. The mother was not permitted to relocate the children without court approval or the father’s consent. The property settlement divided the matrimonial assets in a 70/30 ratio in favour of the wife, with specific directions for the transfer of the matrimonial home. Both parents retained their personal property and were responsible for their respective debts.
Orders
Orders of the court
1.
That all previous orders be dismissed.
2.
That the parents have equal shared parental responsibility in relation to the major long term issues for the children, [X] born [in] 2005 and [Y] born [in] 2007.
3.
That without limiting the parental responsibility of either parent pursuant to paragraph (2) of these orders, each parent keep the other parent informed of and properly consult with the other with respect to any major long-term issues affecting the children. For the purposes of these orders, “major long-term issues” include:
(a) the children’s education (both current and future);
(b) the children’s religious and cultural upbringing;
(c) the children’s health, including that except for emergencies, neither party shall take the children to any health professional without first informing the other;
(d) the health of each party, including any issues which may impact on the ability of the wife or the husband to care for the children;
(e) the names by which each of the children is known;
(f) changes to the children’s living arrangements that may make it more difficult for the children to live with a parent, including that all changes of address and telephone number shall be notified to the other parent immediately;
(g) generally, any matter regarding the children in respect of which a parent should be informed of or consulted with respect to having regard to the provisions of Part VII of the Family Law Act 1975.
4.
That notwithstanding Order 2 herein:
(a) The Mother shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with her; and
(b) The Father shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with him.
5.
That the children live with the Mother.
6.
That the children spend time with the Father at all reasonable times, and that the time that the children spend with the Father gradually increase on the following basis:
(a) Until 1 January 2011:
(i) in week 1 from 9.00am Saturday to 9.00am Monday;
(ii) in week 2, from 9.00am Saturday to 4.00pm Sunday,
(iii) with that arrangement alternating in a fortnightly cycle.
(b) From 1 January 2011 from after school Friday until the commencement of school on Tuesday in alternate weeks.
(c) From 1 January 2012 from after school on Thursday until the commencement of school on Wednesday in alternate weeks.
(d) From 1 July 2012 the children live with the parties on a week about basis with changeovers to occur from after school each Friday.
7.
That neither parent relocate the residence of the children out of the Townsville area without an order of this Court or the prior written consent of the other parent.
8.
In relation to school holidays the following:
(a) The children to spend block holiday time with the Father for a total of 4 weeks during the year, commencing 2011, to be divided between the school holiday periods, and to include in each alternate year that they spend Christmas day with the Father.
(b) The children to spend all other school holiday periods with the Mother.
(c) The children shall spend 12.00 noon to 6.00pm on Christmas day with the parent with whom they are not spending holiday time with.
9.
That the Father’s time with the children pursuant to order 8(a) should include not more than a two week period with the children during the Christmas school holiday period, concluding in alternate years on or before 31 December in that year, and for the last two weeks of the school holiday period in the alternate year.
10.
The holiday arrangements in paragraph 8 shall take precedence over the alternate weekly arrangements in paragraph 6. The parent with whom the children spend time in the last week of a school holiday period shall not spend time with the children in the first week of the following school term.
11.
That the Father and the Mother as the case may be, be entitled to communicate with the children during any time that the children are living with the other parent (including during holiday periods) at times as may be agreed and failing agreement at 6.00pm on each day excluding changeover day.
12.
That notwithstanding orders 6 and 8 and provided that the parents and the children are in the same locality, both of the children spend time with the parent with whom they are not otherwise living, on the following days:
(a) The children shall spend Mother’s day with the Mother from 9.00am until 5.00pm.
(b) The children shall spend Father’s Day with the Father from 9.00am until 5.00pm.
(c) The children shall spend 3 hours if a school day and 6 hours if not a school day, with the parent with whom they are not otherwise spending time, on each of the children’s birthdays and on that parent’s birthday.
(d) From 5.00pm Christmas Eve until 1:00pm on Christmas Day.
13.
Each party shall keep the other party informed of his/her address and landline telephone number at all times and shall advise the other party of any change to their address or landline telephone number including new contact details, within 24 hours of such change.
14.
That each party be at liberty to travel away from Townsville during the block holiday periods they spend with the children.
THAT AS AND BY WAY OF FINAL PROPERTY SETTLEMENT:
15.
So as to effect a division of 70 percent in favour of the Wife and
30 percent in favour of the Husband including:
(a) that the wife retain all superannuation entitlements in her name;
(b) that the Husband retain all superannuation entitlements held in his name;
(c) That within 60 days of the date of these Orders, the Wife transfer to the Husband all her right, title and interest in and to the former matrimonial home situate at Property M, Townsville and that the Husband pay to the Wife the sum of $69,000 and indemnify the Wife in relation to any liability then attached to the property.
16.
That in the event of the property not being transferred pursuant to Order 15(c) herein, then that the property be sold and following the payment of all liabilities attaching thereto that the Wife receive
70 percent of the proceeds of sale and the Husband receive 30 percent of the proceeds of sale.
17.
That save as set out above, each party otherwise retain all property in their possession, including chattels, motor vehicles and monies held in bank accounts in their name or on their behalf and any other property in their possession or control.
18.
That save as set out above, each party shall be solely liable for any debt standing to that party’s name as at the date of this order and shall indemnify the other party in relation to any liability attaching to such property.
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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