Hannigan and Sorraw - [2010] FamCA 807

FAMILY COURT OF AUSTRALIA

HANNIGAN & SORRAW

[2010] FamCA 807

FAMILY LAW – CHILDREN – With whom a child lives – Best interests – International relocation

APPLICANT:

Mr Hannigan

RESPONDENT:

Ms Sorraw

FILE NUMBER:

SYC

2143

2007

DATE DELIVERED:

13 September 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Cohen

HEARING DATE:

23, 24, 25, 26 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms A Rees SC

SOLICITOR FOR THE APPLICANT:

York Family Law

COUNSEL FOR THE RESPONDENT:

Mr R Schonell

SOLICITOR FOR THE RESPONDENT:

Moira Ryan Lawyers Pty Ltd

Orders

That S born … December 2005 (“the child”) shall live with the mother.
That the mother is hereby permitted to remove the child from the Commonwealth of Australia and relocate her to and reside with her in New York State, United States of America.
That the child shall have Skype contact with the father for not more than 10 minutes at a time on 7 occasions in each fortnight at times agreed to by the parents in writing or if not so agreed between 6.00pm and 6.30pm New York time on 4 days each fortnight which the mother nominates in writing and on 3 days each fortnight which the father nominates in writing.
That at the father’s election or when Skype contact is not available, in place of Skype contact the child shall have telephone contact with the father at the time she would otherwise have Skype contact.
For the purpose of implementing order (3) each parent shall at his or her cost obtain and maintain the equipment and services necessary at their respective homes to enable Skype contact and shall forthwith notify the other by e-mail of their e-mail address and of any change in e-mail address by which contact is to be undertaken and notice is to be provided forthwith by a parent to the other parent on that parent learning in any particular instance of ordered contact that the child or the father will not be able to have access to Skype.
That for the purpose of implementing order (4) each parent shall at his or her own cost obtain and maintain a mobile telephone and mobile telephone service by which telephone contact between the child and the father is to be undertaken if landline telephone contact is not available and each parent shall forthwith notify the other of that mobile number and if he or she has a landline, the landline number and any change in any of these numbers.
That all contact provided for in orders (3) and (4) is to be instigated by the father who is to meet his own individual call costs for the purpose of contact.
(a) That the child is to spend time with the father in any 2 of the following periods in each year:
(i)from 9am in the first day to 5pm on the last Friday of her spring school break;
(ii)from 9am on the first day to 5pm on the last…

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 Hannigan and Sorraw

Details

AGLC: Hannigan and Sorraw [2010] FamCA 807
Case: [2010] FamCA 807
Decision Date: 13 September 2010

CaseChat Overview and Summary

This case concerned a dispute between a mother and father regarding their child, S, born in December 2005. The primary issue before the court was the relocation of the child from Australia to New York State, United States of America, with the mother. The court was required to determine the living arrangements for the child and the nature and extent of contact the child would have with the father, both remotely and during periods of physical time spent together.

The court was tasked with determining the best interests of the child in the context of an international relocation. This involved balancing the mother's desire to reside in New York with the father's right to maintain a meaningful relationship with his child. The court had to establish detailed orders concerning communication methods, travel arrangements, financial responsibilities for travel and accommodation, and the provision of essential information between the parents.

Justice Cohen ordered that the child shall live with the mother and permitted her relocation to New York. The court made detailed provisions for Skype and telephone contact between the child and the father, specifying frequency, duration, and the responsibility for initiating contact and associated costs. The orders also outlined specific periods the child would spend with the father annually, including conditions regarding travel itineraries, travel costs, and the locations where such time could be spent, with a preference for countries signatory to the Hague Convention. Further orders addressed communication during the child's time with the father, financial contributions towards travel for the initial years, passport management, and ongoing information sharing regarding the child's schooling, health, and residential addresses.

Orders

Orders of the court

That S born … December 2005 (“the child”) shall live with the mother.

That the mother is hereby permitted to remove the child from the Commonwealth of Australia and relocate her to and reside with her in New York State, United States of America.

That the child shall have Skype contact with the father for not more than 10 minutes at a time on 7 occasions in each fortnight at times agreed to by the parents in writing or if not so agreed between 6.00pm and 6.30pm New York time on 4 days each fortnight which the mother nominates in writing and on 3 days each fortnight which the father nominates in writing.

That at the father’s election or when Skype contact is not available, in place of Skype contact the child shall have telephone contact with the father at the time she would otherwise have Skype contact.

For the purpose of implementing order (3) each parent shall at his or her cost obtain and maintain the equipment and services necessary at their respective homes to enable Skype contact and shall forthwith notify the other by e-mail of their e-mail address and of any change in e-mail address by which contact is to be undertaken and notice is to be provided forthwith by a parent to the other parent on that parent learning in any particular instance of ordered contact that the child or the father will not be able to have access to Skype.

That for the purpose of implementing order (4) each parent shall at his or her own cost obtain and maintain a mobile telephone and mobile telephone service by which telephone contact between the child and the father is to be undertaken if landline telephone contact is not available and each parent shall forthwith notify the other of that mobile number and if he or she has a landline, the landline number and any change in any of these numbers.

That all contact provided for in orders (3) and (4) is to be instigated by the father who is to meet his own individual call costs for the purpose of contact.

(a) That the child is to spend time with the father in any 2 of the following periods in each year:

(i) from 9am in the first day to 5pm on the last Friday of her spring school break;

(ii) from 9am on the first day to 5pm on the last Friday of her mid-winter school break;

(iii) from 5pm on 23 December to 5pm on the day before the first school day of the following year;

(iv) from 9am on the first Monday to 5pm on the 4th Monday of her summer school break;

(b) provided that the father gives the mother an itinerary for that time which so far as is practical nominates the names, addresses and telephone numbers of the places where the child will be staying, the telephone numbers by which he and the child can be contacted and the flight details and details of any other form of transport being used.

That for the purpose of implementing order (8) the mother shall at her cost deliver the child to Y Airport or such other place the father shall nominate which is not further from A than is Y Airport or the parties shall agree to in writing and;

(a) until the child reaches twelve (12) years of age the father shall at his cost collect her from the mother at the Airport or other place; and,

(b) after the child reaches twelve (12) years of age the father shall be at his cost responsible for colleting her or arranging for her collection from the mother; and

(c) The child shall at the father’s cost be returned to the mother by the father or pursuant to arrangements he has made at the place she was collected unless the parties otherwise agree in writing.

10.

That for the purpose of implementing order (8), when the child spends time with the father during the spring, mid-winter or Christmas school breaks the father shall be entitled to spend time with the child in the United States or in another country which is a signatory to the Convention on the Civil Aspects of International Child Abduction known as the Hague Convention but not elsewhere provided that;

(a) the travel time for the child from Y Airport or such other place as the father has nominated or the parties have agreed to pursuant to Order (9) for the child’s collection by or on behalf of the father to her ultimate destination is not more than 8 hours; and,

(b) before the child attains the age of 12 years, unless the parents otherwise agree in writing, she is to be accompanied by the father on all flights or other forms of long distance travel after she leaves the mother’s care and before she is returned to her care.

11.

That for the purpose of implementing order (8) in instances where the child spends time with the father during her summer break the father shall be entitled to spend time with the child in the United States or in another country which is a signatory to the said Hague Convention provided that before she attains the age of 12 years, unless the parents otherwise agree in writing, she is to be accompanied by the father on all forms of long distance travel after she leaves the mother’s care and before she is returned to her care.

12.

That during periods when the child spends time with the father that she shall have telephone contact with the mother at the mother’s cost on not less than 3 occasions each week for not less than 10 minutes on each occasion at times agreed by the parents or if not agreed between 6pm and 7pm at the place where the child is located on each Monday, Wednesday and Sunday.

13.

That for the purpose of implementing order (12) the father shall at all times keep the mother advised of the telephone number at which the child can next be contacted.

14.

That if the father spends time with the child in any of her school breaks in any of the years 2011, 2012 and 2013 the mother shall cause to be paid to the father the cost of his and the child’s fares and accommodation incurred in spending time together in that year up to a maximum of $A6000.00 for any such year within 7 days of the father sending to the mother documented proof of the said cost but otherwise the father shall be responsible for all costs of travel and accommodation for the child and himself after the child has been delivered by the mother to Y Airport or such other place the father nominates or the parties have agreed to pursuant to order (9).

15.

That for the purpose of order (14) the child’s 2010-11 Christmas school break shall be regarded as part of the year 2011, her 2011-2012 Christmas school break shall be regarded as part of the year 2012 and her 2012-2013 Christmas school break shall be regarded as part of the year 2013.

16.

That for the purpose of the father spending time with the child outside the United States the mother shall provide a valid passport for the child to travel with the father in accordance with her itinerary and the father shall return the passport to the mother on delivery of the child to the mother at the end of each time he spends with the child.

17.

That the child shall spend time with and have Skype and telephone contact with the paternal grandmother at such times as the paternal grandmother and the father agree during times where the child is to spend time with or have Skype or telephone contact with the father pursuant to these orders.

18.

That the father shall within one week deliver to the mother or her Australian solicitor any current passport for the child whether Australian or United States that he presently holds.

19.

That the mother is hereby authorised to act on behalf of both the father and herself to do all things necessary to remove and to obtain the removal from the watch list kept by the Australian Federal Police at airports and other points of egress from Australia of S born … December 2005.

20.

That the mother shall do all things necessary to provide the father in a timely manner with copies of all written information she receives or is entitled to receive from any school the child is attending pertaining to her progress or behaviour at school.

21.

That each parent is to keep the other fully and promptly informed of any significant injury, medical condition, disability or significant emotional condition affecting the child when she is in the immediate care of that parent and shall forthwith notify the other parent of hospital, dental, medical or other treatment by a health professional the child has had or is to receive while in his or her immediate care and shall authorise the persons or organisations which are to provide or have provided that treatment to give the other parent any information the other parent seeks from that person or organisation.

22.

That the mother shall at all times keep the father informed of her residential address and the child’s residential address.

23.

That on the child becoming able to utilise e-mail contact, she shall have unlimited contact with the father by this mode and for this purpose the mother shall obtain and maintain a computer and e-mail contact address by which the child can be contacted by the father and contact the father.

24.

That costs are reserved.

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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