Hoffman and Fairfield - [2020] FamCA 193

FAMILY COURT OF AUSTRALIA

HOFFMAN & FAIRFIELD

[2020] FamCA 193

FAMILY LAW – CHILDREN – International Relocation – Where the mother seeks to relocate with the child to the United Kingdom – Where the father opposes the order and seeks equal shared parental responsibility – Where the child has a strong attachment to both parents – Consideration of section 60CC – Where the Court finds that orders for the child to remain in Australia to be in her best interest.

Family Law Act 1975 ss 60B, 60CC, 61DA, 65DAA
Surveillance Device Act 2007 (NSW)

MRR v GR (2010) 263 ALR 368
Taylor v Barker (2008) 37 FamLR 461

APPLICANT:

Mr Hoffman

RESPONDENT:

Ms Fairfield

INDEPENDENT CHILDREN’S LAWYER:

Delaney Lawyers

FILE NUMBER:

SYC

962

2016

DATE DELIVERED:

19 March 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

11-15 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lioumis

SOLICITOR FOR THE APPLICANT:

Horton Rhodes

COUNSEL FOR THE RESPONDENT:

Mr Levet with Mr Seow

THE RESPONDENT:

Ms Fairfield

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Delaney Lawyers

Orders

All existing parenting orders in relation to the child X, born on … 2014 ("X") are discharged.
2.1. The parties have equal shared parental responsibility for X.
2.2.Each of the parties has sole parental responsibility for making decisions about X's day-to-day care when she is living with him or her.
X lives with the mother at all times other than periods when she is in the care of the father pursuant to these Orders.
Until term 3 2020 X spend time with the father as follows:
4.1.from the conclusion of school or 3.00 pm on Tuesday until the commencement of school on Wednesday in each week and
4.2.each alternate weekend from the conclusion of school or 3.00 pm on Friday until the commencement of school or 9.00 am on Monday
4.3.from 4.00 pm on 15 April until 4.00 pm on 19 April
4.4.for the purposes of implementation of Order 4:
4.4.1.the father collect X from school or the mother's residence and return her to school if a school day and
4.4.2.if a non-school day, the mother collect X from the father's home at the conclusion of these periods of time
4.4.3.in April 2020 school holidays the father collect X from the mother's residence on 15 April and the mother collect her from the father's home on 19 April

4.5. upon provision of 42 days' notice:
4.5.1.the mother is at liberty to travel with X to the United Kingdom during the June/July 2020 for a period of 25 days
4.5.2.if the mother so travels to the United Kingdom with X, the child spend makeup time with the father from the conclusion of school on Thursday 18 June 2020 until the commencement of school on the last weekend of the school term and on the first weekend of the next school term

4.6.if the mother does not elect to travel to the United Kingdom…

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 Hoffman and Fairfield

Details

AGLC: Hoffman and Fairfield [2020] FamCA 193
Case: [2020] FamCA 193
Decision Date: 19 March 2020

CaseChat Overview and Summary

Stevenson J made orders concerning the parenting of a child, X, born in 2014, in a dispute between the child's parents, Hoffman and Fairfield. The orders discharged all existing parenting arrangements and established new provisions for X's care and time with each parent.

The court was required to determine the terms of parenting orders that would best serve the interests of the child, X. This involved establishing arrangements for equal shared parental responsibility, determining the primary residence of the child, and setting out detailed schedules for X's time with each parent, including weekday, weekend, holiday, and special occasion arrangements. The court also addressed the liberty of each parent to travel with X outside of Australia, including specific conditions and notice periods.

The court's reasoning, as reflected in the orders, indicates a move towards a more balanced time spent with each parent, with a gradual increase in the father's time with X over several years. The orders specify the method of changeovers between parents and include provisions for notification of injury or illness. The court also allowed for variations to the orders by written agreement between the parties.

The final orders discharged all previous parenting orders and established new arrangements for X's care, including equal shared parental responsibility, with X living with the mother and spending significant time with the father. The orders also set out detailed provisions for future holiday periods and parental travel with the child.

Orders

Orders of the court

All existing parenting orders in relation to the child X, born on … 2014 ("X") are discharged.

2.1. The parties have equal shared parental responsibility for X.

2.2. Each of the parties has sole parental responsibility for making decisions about X's day-to-day care when she is living with him or her.

X lives with the mother at all times other than periods when she is in the care of the father pursuant to these Orders.

Until term 3 2020 X spend time with the father as follows:

4.1. from the conclusion of school or 3.00 pm on Tuesday until the commencement of school on Wednesday in each week and

4.2. each alternate weekend from the conclusion of school or 3.00 pm on Friday until the commencement of school or 9.00 am on Monday

4.3. from 4.00 pm on 15 April until 4.00 pm on 19 April

4.4. for the purposes of implementation of Order 4:

4.4.1. the father collect X from school or the mother's residence and return her to school if a school day and

4.4.2. if a non-school day, the mother collect X from the father's home at the conclusion of these periods of time

4.4.3. in April 2020 school holidays the father collect X from the mother's residence on 15 April and the mother collect her from the father's home on 19 April

4.5. upon provision of 42 days' notice:

4.5.1. the mother is at liberty to travel with X to the United Kingdom during the June/July 2020 for a period of 25 days

4.5.2. if the mother so travels to the United Kingdom with X, the child spend makeup time with the father from the conclusion of school on Thursday 18 June 2020 until the commencement of school on the last weekend of the school term and on the first weekend of the next school term

4.6. if the mother does not elect to travel to the United Kingdom with X in June/July 2020, she spend time with the father from 4.00 pm on 5 July 2020 until 4.00 pm on 12 July 2020, with the father to collect the child on 5 July and the mother to collect her on 12 July.

From the commencement of school term 3 in 2020, X spend time with the father as follows:

5.1. from the conclusion of school on Tuesday until the commencement of school on Wednesday in week 1

5.2. from the conclusion of school on Thursday until the commencement of school on Monday in week 2

5.3. the father will collect X from and return her to school for the purposes of implementation of Order 5.

From the commencement of school term 1 in 2021 X spend holiday time with the father as follows:

6.1. for half of the Terms 1, 2 and 3 holidays, from 10.00 am on the first day of the holidays until 3.00 pm on the day being the midpoint of the holidays in even-numbered years and from 3.00 pm on the midpoint day until 12.00 noon on the last day of the holidays

6.2. for the period 9 January at 10 am until 12.00 noon on the last day of the holidays in odd-numbered years and from 10 am on the first day of holidays until 9 January at 10 am on even-numbered years.

6.3. the parties effect changeovers by the father collecting the child from the mother's residence at the commencement of these periods and the mother collecting her from the father's home at the conclusion thereof

6.4. 6.4.1. from 9.00 am on 23 December until 12.00 noon on 25 December 2020 and in each alternate year thereafter

6.4.2. from 12.00 noon on 25 December until 12.00 noon on 29 December in 2021 and each alternate year thereafter

6.4.3. from 9.00 am on Father's Day until 9.00 am on the following day

6.4.4. from 12.00 noon on Easter Sunday until the commencement of school or 9.00 am on the following Tuesday in even-numbered years and from the conclusion of school or 3.00 pm on Easter Thursday until 12.00 noon on Easter Sunday in

odd-numbered years.

6.5. the parties implement changeovers, where necessary, by the father collecting the child from the mother's residence at the commencement of these periods and the mother collecting her from the father's home at the conclusion thereof

X spend time with the mother from 9.00 am on Mother's Day until 9.00 am on the following day.

X spend time on her birthday with the parent who does not have her care from the conclusion of school until 6.00 pm on a school day and from 12.00 noon until 6.00 pm on a non-school day.

The mother is at liberty to travel outside of the Commonwealth of Australia for a total of four weeks per calendar year on the following conditions:

9.1. provision of no less than 30 days written notice except in the case of an emergency

9.2. provision of copies of return airline tickets, an itinerary, accommodation details and travel insurance certificate

9.3. travel to non-Hague Convention countries is not permitted without the written consent of the father.

10.

The father is permitted to travel with the child outside of the Commonwealth of Australia, on the conditions set out in Order 9, as follows:

10.1. for two periods each of seven days in 2020

10.2. for a total of three weeks in 2021 with no such period to exceed 10 days in length

10.3. for a total of three weeks in 2022 with no such period to exceed 14 days in length

10.4. for a total of four weeks in 2023 with no such period to exceed 17 days in length

10.5. on identical terms to Order 9 from 2024.

11.

Unless provided otherwise in these Orders, changeovers will be implemented by:

11.1. the father collecting X from and returning her to school wherever possible or

11.2. the father collecting X from the residence of the mother at the commencement of time and the mother collecting the child from the home of the father at the conclusion thereof.

12.

Each of the parties inform the other as soon as reasonably practicable of any injury or illness suffered by X, which requires medical treatment, while she is in the care of that parent.

13.

The parties are at liberty to vary the provisions of these Orders by agreement in writing from time to time.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.