HOPKIRK & HOPKIRK

Case [2010] FamCAFC 187

Family Court Of Australia

HOPKIRK & HOPKIRK [2010] FamCAFC 187

FAMILY LAW - APPEAL – Where the Federal Magistrate erred in the exercise of her discretion – Whether the Federal Magistrate erred in making orders for travel for the child – Where the Federal Magistrate erred in making orders which were not supported by the evidence – Where the Federal Magistrate omitted to take into account relevant matters – Where the Federal Magistrate did not give any or any adequate reasons – Appeal Allowed

FAMILY LAW - REDETERMINATION – Where all of the evidence on which the parties relied on before the Federal Magistrate is also before this court – Consideration of the best interests of the child and the travel arrangements as proposed by the parties 

AMS v AIF; AIF v AMS (1999) 199 CLR 160
Cross v Beaumont (2008) 39 Fam LR 389
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
House v King (1936) 55 CLR 499
Korban & Korban [2009] FamCAFC 143
Norbis v Norbis (1986) 161 CLR 513
Rollings v Rollings (2009) 230 FLR 396

Family Law Act 1975 (Cth)

Evidence Act1995 (Cth)
APPELLANT: MS HOPKIRK
RESPONDENT: MR HOPKIRK
FILE NUMBER: MLC 7678 of 2008
APPEAL NUMBER: SA 2 of 2010
DATE DELIVERED: 17 September 2010
PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne
JUDGMENT OF: O’Ryan J
HEARING DATE: 4 May 2010
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 3 December 2009
LOWER COURT MNC: [2009] FMCAfam 1162

Representation

COUNSEL FOR THE APPELLANT: Ms Stoikovska
SOLICITOR FOR THE APPELLANT: Marshalls & Dent
THE RESPONDENT: Self-Represented

Orders

  1. The appeal be allowed.

  2. Orders 16, 17, 18, 19 and 20 made by Federal Magistrate Riley on 3 December 2009 be discharged.

  3. In respect of the child born … November 2006 of the relationship of the Mother and the Father, subject to the Mother providing the Father with 45 days written notice setting out:

    (a)    dates of travel;

    (b)    all flight arrangements;

    (c)    the general itinerary of where the child of the relationship will be staying overseas; and

    (d)    the contact details for all accommodation overseas;

    orders 8, 9, 10, 11 and 12 made on 3 December 2009 be suspended for a period of 23 days in 2010 or 2011 and in each alternate year thereafter, with such time to be offset against any time provided to the Mother by orders 12(a) and 12(b) of the orders of 3 December 2009, and the Mother be entitled to remove the child from the Commonwealth of Australia so as to travel overseas with the child to visit members of the maternal family.

  4. The Mother and the Father do all acts and things and execute all documents and writings necessary to ensure that a valid Australian passport is issued for the child at all times until the child attains the age of 18 years.

  5. In the event a parent refuses or neglects to comply with their obligations pursuant to order 4…

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Details
AGLC
HOPKIRK & HOPKIRK [2010] FamCAFC 187
Case
[2010] FamCAFC 187
Decision Date

CaseChat Overview and Summary

In the case of Hopkirk & Hopkirk, the parties were involved in a dispute concerning the care and custody of their child, with the primary focus being on the child’s travel arrangements and the restrictions placed on such travel by the Federal Magistrate. The appeal was heard by the Family Court of Australia, which was tasked with reviewing the decisions made by the Federal Magistrate regarding the child’s travel and the evidence presented by both parties. The legal issues before the court involved the exercise of discretion by the Federal Magistrate, specifically whether the orders made were supported by the evidence, took into account relevant matters, and provided adequate reasons.

The court found that the Federal Magistrate had erred in her exercise of discretion. The orders made regarding the child’s travel were not supported by the evidence, were against the weight of the evidence, and failed to consider relevant matters. The Federal Magistrate did not adequately address the Father’s concerns about the child’s young age and the potential difficulties of overseas travel, nor did she consider the evidence presented by the Mother. Additionally, the Magistrate did not provide sufficient reasons for her decision, particularly in relation to the potential for further litigation due to the ongoing conflict between the parents. As a result, the court determined that the appeal should be allowed.

The court ordered that the appeal be allowed, and specific orders made by the Federal Magistrate were discharged. The court also suspended certain travel restrictions, allowing the Mother to travel overseas with the child under certain conditions, including providing the Father with detailed notice of travel plans. Furthermore, the court mandated that both parents must ensure the child holds a valid Australian passport until the age of 18 and appointed an officer to enforce compliance if necessary. The child’s passport would be held by the Registry Manager, except for the periods immediately before and after travel. The Mother was required to provide the Registry Manager with a copy of the notice given to the Father.

Orders

Orders of the court

1.

The appeal be allowed.

2.

Orders 16, 17, 18, 19 and 20 made by Federal Magistrate Riley on 3 December 2009 be discharged.

3.

In respect of the child born … November 2006 of the relationship of the Mother and the Father, subject to the Mother providing the Father with 45 days written notice setting out:

(a) dates of travel;

(b) all flight arrangements;

(c) the general itinerary of where the child of the relationship will be staying overseas; and

(d) the contact details for all accommodation overseas;

orders 8, 9, 10, 11 and 12 made on 3 December 2009 be suspended for a period of 23 days in 2010 or 2011 and in each alternate year thereafter, with such time to be offset against any time provided to the Mother by orders 12(a) and 12(b) of the orders of 3 December 2009, and the Mother be entitled to remove the child from the Commonwealth of Australia so as to travel overseas with the child to visit members of the maternal family.

4.

The Mother and the Father do all acts and things and execute all documents and writings necessary to ensure that a valid Australian passport is issued for the child at all times until the child attains the age of 18 years.

5.

In the event a parent refuses or neglects to comply with their obligations pursuant to order 4 hereof within 21 days of being served with written notice from the other party seeking compliance with that order, an officer of the Federal Magistrates Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such document or documents as may be necessary in order to issue a valid Australian passport in the name of the child.

6.

Save and except for a period of 7 days prior to the child’s departure from the Commonwealth of Australia with the Mother pursuant to order 3 and a period of 7 days after the child’s return to the Commonwealth of Australia the child’s passport is to remain in the possession of the Registry Manager of the joint Family Court of Australia and Federal Magistrates Court Melbourne Registry.

7.

Within 7 days prior to the departure from the Commonwealth of Australia of the Mother with the child pursuant to order 3 hereof the Mother may collect the passport of the child from the said Registry Manager for the purposes of removing the child from the Commonwealth of Australia and Mother shall return the passport of the child to the said Registry Manager within 7 days of her return to the Commonwealth of Australia with the child.

8.

To facilitate order 7 hereof the Mother shall provide the Registry Manager with a copy of the written notice given to the Father in accordance with order 3 hereof.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was submitted on behalf of the Mother that this evidence was unchallenged in any way by the Father. It was submitted that there was no evidence to infer the Mother would not return the child to Australia and that “the weight of the evidence is to the contrary. [The Father] never alleged this as a concern for him. Her Honour made no findings of credit against [the Mother] on these facts. Her Honour omitted to take into account these relevant matters’’.Conclusion – Ground 1 I agree with the submissions of the Mother. I accept that when consideration is given to what the Federal Magistrate said at [163] and [165], and the evidence, that her Honour made orders that were not supported by the evidence; were against the weight of the evidence; and omitted to take into account relevant matters. In my view, the complaint in ground 1 has been established. The Father only raised issues relating to the young age of the child and her comfort during any period overseas and those matters were addressed by the Mother. The Mother gave evidence in relation to the effect on the child of the trip in 2008. The Federal Magistrate however in her reasons did not address any of those concerns of the Father nor the evidence of the Mother. For example, the Federal Magistrate in her reasons did not say whether or not she agreed with the contentions of the Father that the child was too young to travel or that the travel would be too arduous for the child, or that the Mother would be travelling “all over the place”. In any event, her Honour had found that the Mother was able to care for the child and there was no evidence to suggest that the Mother would not adequately care for the child in the event that she took the child to the United Kingdom. As to the finding by the Federal Magistrate at [165] that in view of the “mother’s substantial connections with an overseas location” it was in the best interests of the child that both parties be restrained from removing the child from the Commonwealth of Australia except with an order, as I have already observed, it was never put to the Mother that there may be a risk that she would not return. It was also never raised with the Family Consultant. Further, although her Honour made a fleeting reference at [163] that the Mother “has a job and a mortgage in Australia”, all of the evidence that demonstrated why there was no risk that the Mother would not return was not addressed by her Honour. This evidence included what happened in 2008; that the Mother has an entrenched life in Australia; that the Mother is a permanent resident of Australia; that the Mother has been living in Melbourne since 2000 save for two months in 2008; that the Mother continues to be employed by the same employer since 2002; and that the Mother is paying off her home in Australia. I am also of the view that in the event that the Mother ever seeks to travel overseas there is a concern that there would be further litigation because of the absence of any ability on the part of the parents to be able to communicate and reach agreement. In my view, in the circumstances of this case, her Honour should have dealt with the additional consideration in s 60CC(3)(l) of the Act when considering the orders in relation to overseas travel given the high level of conflict between the parents and her concern about further litigation.

Ratio Decidendi

Legal Principle Established

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