Hannan and Hannan - [2008] FamCAFC 37

FAMILY COURT OF AUSTRALIA

HANNAN & HANNAN

[2008] FamCAFC 37

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Interim orders – CHILDREN – With whom a child lives – Relocation – Whether the Federal Magistrate gave sufficient reasons for his decision – The challenge on appeal is to the cogency of the explanation for the result and to the adequacy of content, namely, whether there has been a failure to address relevant considerations under the legislation – Appeal allowed

Family Law Act 1975 (Cth), Part VII, s 60CC

F and B [2000] FamCA 676
Smith v Smith (1994) FLC 92-488

APPELLANT:

MS HANNAN

RESPONDENT:

MR HANNAN

FILE NUMBER:

2008

APPEAL NUMBER:

TVC

1371

2007

DATE DELIVERED:

2 April 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

WARNICK J

HEARING DATE:

28 March 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

29 January 2008

LOWER COURT MNC:

[2008] FMCAfam 107

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr T Betts

SOLICITOR FOR THE APPELLANT:

Giudes & Elliott

COUNSEL FOR THE RESPONDENT:

Mr M Middleton

SOLICITOR FOR THE RESPONDENT:

McDonald Leong Lawyers

Orders

That the appeal be allowed.
That Order 3 of the orders of Federal Magistrate Coker made 29 January 2008 be set aside.
That Order 4 of the orders of Federal Magistrate Coker made 29 January 2008 be varied by the addition of the following further sentence:
This order is interlocutory only in its operation which is confined to the period between 2 April 2008 and the date upon which any further application for interim parenting orders in respect of the children named in the orders of 29 January 2008 comes before a court having jurisdiction under the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment under the pseudonym Hannan & Hannan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA11 of 2008

File Number: TVC 1371 of 2007

MS HANNAN

Appellant

And

MR HANNAN

Respondent

REASONS FOR JUDGMENT

In late October 2007, Ms Hannan moved from Townsville in North Queensland with the two children of herself and Mr Hannan to [the town X], about one and a quarter hour’s drive south. The parents had separated in August 2006 and for the six months or so leading up to the mother’s move, the father, who lived in Townsville, had been seeing the children on alternate weekends.
Upon learning of the mother’s move, the father filed an application in the Federal Magistrates Court. On hearing the interim application on 29 January 2008, for reasons he gave ex tempore, Federal Magistrate Coker made orders, including the following:
(3)If the Mother is residing in Townsville the children live with each parent for a period of one week commencing with the Father at 3:00pm on Friday 1 February 2008 until 3:00pm on Friday 8 February 2008 and to alternate each week…

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 Hannan and Hannan

Details

AGLC: Hannan and Hannan [2008] FamCAFC 37
Case: [2008] FamCAFC 37
Decision Date: 2 April 2008

CaseChat Overview and Summary

Hannan and Hannan involves a dispute between parents over the relocation of a residence and the impact on the children's relationship with both parents. The matter was heard in the Family Court of Australia. The central issue before the court was whether the mother's decision to relocate to a different town without the father's knowledge or consent was justified and if it would impact the children's right to maintain a meaningful relationship with both parents. The court had to consider whether the mother's actions were in the best interests of the children and whether the father's objection to the move was valid.

The court examined the evidence and arguments presented by both parties, focusing on the mother's reasons for the relocation and the impact it would have on the children's relationship with their father. The court found that the mother's decision to move without the father's knowledge or consent was not in the best interests of the children. It was noted that the mother's actions precluded the children from maintaining a meaningful relationship with their father. The court also considered the mediation process between the parties, which indicated a willingness to move towards more liberal time with the children. The paramount consideration for the court was the children's right to a meaningful relationship with both parents.

The appeal was allowed, and the orders made by the Federal Magistrate were varied. The court set aside Order 3 of the orders made by Federal Magistrate Coker on 29 January 2008 and varied Order 4 by adding a further sentence that the order is interlocutory only in its operation, confined to the period between 2 April 2008 and the date upon which any further application for interim parenting orders in respect of the children named in the orders of 29 January 2008 comes before a court having jurisdiction under the Family Law Act 1975 (Cth). This decision highlights the importance of considering the children's best interests and their right to maintain a meaningful relationship with both parents in family law matters.

Orders

Orders of the court

That the appeal be allowed.

That Order 3 of the orders of Federal Magistrate Coker made 29 January 2008 be set aside.

That Order 4 of the orders of Federal Magistrate Coker made 29 January 2008 be varied by the addition of the following further sentence:

This order is interlocutory only in its operation which is confined to the period between 2 April 2008 and the date upon which any further application for interim parenting orders in respect of the children named in the orders of 29 January 2008 comes before a court having jurisdiction under the Family Law Act 1975 (Cth).

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

There is I think in these paragraphs some looseness of expression. The learned Magistrate refers to the mother as saying that the opportunity for a meaningful relationship with both parents was simply not possible. This the mother had not said. As seen, she mentioned that the contact upon which the parties had once agreed was successfully taking place. Though Coker FM said that the mother asserted that a meaningful relationship was not possible, in context of the surrounding discussion, it seems that the Federal Magistrate was really addressing the prospect of equal time with each parent and the mother’s attitude to that. In any event, having so commented, the learned Magistrate turned to focus on the propriety of the mother’s move in the face of the father’s objection. He continued to discuss that in the following paragraphs saying:18.… She moved precipitously and she moved without the father's knowledge. She explains, in the correspondence that was forwarded, that although she had been actively looking for rental properties in the same price range she is currently renting, she has been unable to find any such property to rent.19.It goes on. Therefore she has no option but to move to [the town X] where she has the support of family and also the added benefit of lower rental than in Townsville. All of that may be correct, but the greater consideration and the paramount one that is always before this Court is, of course, the children's right to, as is set out in section 60CC(2), a meaningful relationship with the father. (emphasis added)20.The mother's actions preclude that from occurring. It may be that the father was, for a period of six months or so, only having time with the children on alternate weekends but the past is by no means the determinant of what must happen in the future. The parties were in mediation. They were, at least from the father's perspective, seeking to move toward more liberal time with the children. The law says that that must be the consideration of the Court and there is no basis upon which I would consider that that should not be the appropriate course to follow, in relation to the matter. Again, there seems to some inaccuracy in the terminology used in these paragraphs (I refer to the highlighted remarks) and a return to focus on the propriety of the mother’s behaviour. In paragraphs 21 and 22, the learned Magistrate refers to a position struck by the mother, in relation to a swap of a weekend contact, at the request of the father, and again is critical of the mother:22.The mother cannot have it both ways. She cannot fail to a consent in relation to arrangements with regard to weekends and yet then demand that her wishes, unilaterally made in relation to arrangements with regard to where she should live, should abide. I am not at all satisfied that there was not an alternative arrangement that might possibly have been made. It may not have been the most convenient, but the overriding consideration is the welfare of the children and their right to a meaningful relationship with both parents. The mother's actions preclude that.