Height and Rhett - [2010] FMCAfam 1268

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEIGHT & RHETT

[2010] FMCAfam 1268

FAMILY LAW – Final arrangements for parenting of children aged 11 and 8 – relocation – presumption of equal shared parental responsibility – parties separated four years – mother has formed new relationship and wishes to live with new partner and the children in [C] – children and parties currently live in [B] – father seeks equal time parenting arrangement – mother will not live outside of [B] without the children – father unable to move to [C] – necessarily father’s preferred outcome necessitates either explicit or implicit restraint on mother’s freedom of movement – evaluation of parties’ competing proposals – best interests – what is reasonably practicable.

Family Law Act 1975, ss.4; 60B; 60CA; 60CC; 61DA; 65DAC; 65DAE; 65DAA

B v B [2006] FamCA 1207
C & S [1998] FamCA 66
MRR v GR [2010] HCA4
AMS v AIF; AIF v AMS (1999) FLC 92-852
Goode & Goode (2006) FLC 92-286
Taylor & Barker [2007] FamCA 1246
Morgan & Miles [2007] FamCA 1230
Fragomeli & Fragomeli (1993) FLC 92-393
B & B: Family Law Reform Act 1995 (1997) FLC 92-755
D and S V (2003) FLC 93-137
Godfrey v Saunders 2008 FLR 287
M & S (2007) FLC 93-313
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712
Bright v Bright (1995) FLC 92-570

Applicant:

MS HEIGHT

Respondent:

MR RHETT

File Number:

ADC 973 of 2010

Judgment of:

Brown FM

Hearing dates:

11 & 12 August & 2 November 2010

Date of Last Submission:

2 November 2010

Delivered at:

Adelaide

Delivered on:

19 November 2010

REPRESENTATION

Counsel for the Applicant:

Ms Ross

Solicitors for the Applicant:

Paul John Walton

Counsel for the Respondent:

Ms Hurley

Solicitors for the Respondent:

Doyle Kingston Swift

ORDERS

The parties have equal shared parental responsibility for the children of the relationship [X] born [in] 1999 and [Y] born [in] 2002 (hereinafter referred to as “the children”).
The children live with the mother.
The mother be permitted to relocate the place of residence of the children to [C], in the State of New South Wales.
The children spend time with the father as follows:
(a)For a period of twelve (12) days in each of the short term school holiday periods commencing from the first Saturday of each holiday;
(b)For the first three (3) weeks of the Christmas school holiday period commencing in 2010 and each alternate year thereafter and for the second three (3) weeks of the Christmas school holiday period commencing in 2011 and each alternate year thereafter;
(c)For half of each Christmas Day at times to be agreed between the parties;
(d)From 10:30am Saturday until 4:00pm Sunday on the weekend of Father’s Day in each year;
(e)On two (2) occasions during each school term from 10:30am Saturday until 4:00pm the following Sunday or such other times to be agreed between the parties.
In order to give effect to orders (4)(a), (b) & (d) hereof…

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 Height and Rhett

Details

AGLC: Height and Rhett [2010] FMCAfam 1268
Case: [2010] FMCAfam 1268
Decision Date: 19 November 2010

CaseChat Overview and Summary

The case involved Height and Rhett, who were parents of two children, born in 1999 and 2002. The parents were engaged in a legal dispute concerning the arrangements for the children’s care and the terms of their shared parental responsibility. The matter was heard and determined by the Family Court of Australia.

The central legal issues before the court involved the allocation of parental responsibility, the residential arrangements for the children, and the specific details of the children’s time to be spent with each parent. The court had to consider various factors, including the children's best interests, the parents' capacity to provide care, and the need for stability and continuity in the children's lives. Additionally, the court needed to decide on the logistics of the children's relocation to a new place of residence.

The Family Court ruled that the parents would have equal shared parental responsibility for the children. The children were to live with their mother, but the father was granted specific visitation rights. The court permitted the relocation of the children to a new location in New South Wales, subject to certain conditions regarding the exchange of the children between parents. The detailed visitation schedule provided the father with significant periods of time with the children during holidays and weekends. The court also outlined the responsibilities of both parents concerning communication, medical information, and respect towards each other in the presence of the children. The final orders included provisions for the parents to share educational information and attend school events, ensuring both parents remained involved in the children's lives. All other applications made by the parents were dismissed.

Orders

Orders of the court

The parties have equal shared parental responsibility for the children of the relationship [X] born [in] 1999 and [Y] born [in] 2002 (hereinafter referred to as “the children”).

The children live with the mother.

The mother be permitted to relocate the place of residence of the children to [C], in the State of New South Wales.

The children spend time with the father as follows:

(a) For a period of twelve (12) days in each of the short term school holiday periods commencing from the first Saturday of each holiday;

(b) For the first three (3) weeks of the Christmas school holiday period commencing in 2010 and each alternate year thereafter and for the second three (3) weeks of the Christmas school holiday period commencing in 2011 and each alternate year thereafter;

(d) From 10:30am Saturday until 4:00pm Sunday on the weekend of Father’s Day in each year;

(e) On two (2) occasions during each school term from 10:30am Saturday until 4:00pm the following Sunday or such other times to be agreed between the parties.

In order to give effect to orders (4)(a), (b) & (d) hereof the children are to be exchanged between the parties at a location to be agreed between them in [W] or such other location as the parties agree and each party is to bear his or her own costs in respect of travelling to and from [W].

In order to give effect to order 4(e) hereof the mother is to deliver the children to and collect them from the father in [B] and bear all the costs of transporting the children in between [B] and [C].

In the event the father is in the vicinity of [C] he be permitted to spend time with the children on giving reasonable notice to the mother.

The father be at liberty to communicate with the children on a daily basis by telephone, email, MSN, letters, photographs and through Skype computer video link.

The mother and father shall:

(a) keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;

(b) keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children;

(c) inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.

10.

The mother authorise any schools attended by the children to provide the father with information about the children’s educational progress and other related activities and supply him with copies of reports, photographs, certificates and awards attained by the children, at his own expense if he shall request same.

11.

During the time the children are with either parent, that parent shall:

(a) respect the privacy of the other parent and not question the children about the personal life of the other parent;

(b) speak of the other parent respectfully;

(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the presence or the hearing of the children.

12.

Each parent be at liberty to attend at the children’s school for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.

13.

All applications be otherwise dismissed.

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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