Illidge & Norton

Case [2008] FMCAfam 1255


FEDERAL MAGISTRATES COURT OF AUSTRALIA

ILLIDGE & NORTON [2008] FMCAfam 1255
FAMILY LAW – Parenting – relocation.

Family Law Act 1975, Part VII, ss.60B, 60B (1), (2), 60CA, 60CC, 60CC (1), (3)(c), (e) – (k), 60CC (4), 61DA, 61DAA, 61DAA (1), (2), (5)

High Court of Australia, Practice Direction No 1 of 2000: Written Submissions and Authorities: All Full Court Matters Except Removal Applications or Leave or Special Leave Applications

A v A: Relocation Approach (2000) FLC ¶93-035
AMS v AIF, AIF v AMS (1999) 199 CLR 160
Bolitho and Cohen (2005) FLC ¶93-224
D and SV (2003) FLC ¶93-137
Re Doran Constructions Pty Ltd (in liq) (2003) 194 ALR 101
F & F (2008) 38 Fam LR 52
Goode v Goode (2006) 36 Fam LR 422
Godfrey & Sanders (2007) 208 FLR 287
Gordon v Goertz (1996) 134 DLR (4th) 321
Goode v Goode (2007) 36 Fam LR 422
H and L  (2000) FLC ¶93-036
H and H (EA 73 of 2004) [2005] FamCA 805
Keach & Keach (2007) FLC ¶93-353
M v S (2007) 37 Fam LR 32
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Martin and Matruglio, (1999) FLC ¶92-876
Mazorski v Albright (2008) 37 Fam LR 518
Morgan & Miles (2007) FLC ¶93-343
Paskandy and Paskandy (1999) FLC ¶92-878
Payne v Payne [2001] Fam 473
P and P (2005) FLC ¶93-239
Sampson v Hartnett (No 10) (2008) 38 Fam LR 315
Taylor & Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238
W v R (2006) 35 Fam LR 608
W & R (2006) FLC ¶93-251
Wiley & Wiley [2008] FamCAFC 153
Winter & Winter [2008] FamCAFC 159

M. Aronson, B. Dyer, M. Groves, Judicial Review of Administrative Action (Third Edition) (Sydney: Thomson – Lawbook Co., 2004)
P. Cane, L. McDonald, Principles of Administrative Law: Legal Regulation of Governance (Melbourne: Oxford University Press, 2008)
J.D. Heydon, Cross on Evidence (Seventh Australian Edition) (Sydney: LexisNexis Butterworths, 2004)
Professor P Parkinson, “The Realities of Relocation: Messages from Judicial Decisions,” (2008) 22 Australian Journal of Family Law 35-55

Applicant: MS ILLIDGE
Respondent: MR NORTON
File Number: CAC 123 of 2008
Judgment of: Neville FM
Hearing dates: 19 & 20 June 2008
Date of Last Submission: 24 July 2008
Delivered at: Canberra
Delivered on: 21 November 2008

REPRESENTATION

Counsel for the Applicant: Mr Nash
Solicitors for the Applicant: Farrar Gesini & Dunn
Counsel for the Respondent: Mr Thomas
Solicitors for the Respondent: Gordon Naylor & Associates

ORDERS

  1. All previous Orders in relation to the children, [C] born in 1995 and [D] born in 1996 be discharged.

  2. The Mother and Father have equal shared parental responsibility for the children.

  3. The children live with the Mother. 

  4. The Mother be at liberty to relocate with the children from Canberra to Sydney. 

  5. The children spend time and communicate with the Father as follows:-

    (a)During New South Wales school terms each alternate weekend from 6:00pm on Friday evening until 4:00pm on Sunday;

    (b)For the…

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AGLC
Illidge & Norton [2008] FMCAfam 1255
Case
[2008] FMCAfam 1255
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Illidge & Norton involved a dispute between the parents of two children, [C] and [D], regarding their care and the arrangements for their time and communication. The legal issues the court had to address included the allocation of parental responsibility, the primary residence of the children, and the detailed schedule for the children's time and communication with each parent. The court also needed to determine the mother's request to relocate with the children from Canberra to Sydney.

The court's reasoning focused on the welfare and best interests of the children as the paramount consideration. It found that both parents should have equal shared parental responsibility, which was seen as conducive to maintaining a close relationship with both parents. The court also granted the mother's application to relocate to Sydney, considering it would not significantly impact the children's relationship with the father. In setting the detailed arrangements for the children's time and communication with each parent, the court aimed to balance the needs and rights of both parents while ensuring the children have meaningful contact with both. The court's detailed orders included specific times for alternating weekends, school holidays, and communication by telephone or webcam. It also included provisions for special occasions and medical care.

Orders

Orders of the court

1.

All previous Orders in relation to the children, [C] born in 1995 and [D] born in 1996 be discharged.

2.

The Mother and Father have equal shared parental responsibility for the children.

3.

The children live with the Mother.

4.

The Mother be at liberty to relocate with the children from Canberra to Sydney.

5.

The children spend time and communicate with the Father as follows:-

(a) During New South Wales school terms each alternate weekend from 6:00pm on Friday evening until 4:00pm on Sunday;

(b) For the first half of the December 2008/January 2009 New South Wales school holiday period, and each alternate year thereafter, and for the second half of the December 2009/January 2010 school holiday period, and each alternate year thereafter;

(c) For the second half of all school holiday periods (excluding the December/January period) during the 2008 New South Wales school holiday periods, and each alternate year thereafter, and for the first half of all school holiday periods (excluding the December/January period) during the 2009 New South Wales school holiday periods, and each alternate year thereafter;

(d) By telephone:

(i) With the call to be initiated by the Father between 5:30pm and 6:00pm each Sunday evening when the children are not otherwise in his care; and

(ii) With the call to be initiated by the Father between 7:00pm and 7:30pm each Wednesday evening when the children are not otherwise in his care.

(iii) Either or both of the telephone calls to occur pursuant to paragraph 5(d) above may occur by way of webcam.

(e) Any additional or alternative times as agreed in writing between the parties.

6.

For the purposes of Order 5 above and in the absence of any written agreement between the parties to the contrary the following Orders apply:

(a) The first half of all school holidays is deemed to commence at 6:00pm on the last day of school;

(b) The second half of the December/January school holidays is deemed to commence at 6:00pm on the Friday in January that falls approximately three weeks after the last day of the school term of the previous year or the middle Wednesday if the relevant school holiday period is for an odd number of weeks; and

(c) The second half of all other school holidays is deemed to commence at 6:00pm on the middle Friday of school holidays or the middle Wednesday if the relevant school holiday period is for an odd number of weeks.

7.

When the children change from one parent’s care to the other’s in accordance with Order 5 above the parent with whom the children have been residing is responsible for delivering them to the other parent at McDonald’s restaurant, [omitted] or another location as agreed in writing between the parties.

8.

On Christmas Day, Easter Sunday and each of the children’s birthdays the parent with whom the children are living will facilitate the children speaking to the other parent by telephone at a time agreed between the parties but failing agreement between 6:00pm and 7:00pm on that day.

9.

If the children are not living with the Mother on Mother’s Day the Father will facilitate the children speaking to the Mother on that day via telephone at a time agreed between the parties but failing agreement between 10:00am and 11:00am.

10.

If the children are not living with the Father on Father’s Day the Mother will facilitate the children speaking to the Father on that day via telephone at a time agreed between the parties but failing agreement between 10:00am and 11:00am.

11.

If the Mother’s birthday or the Father’s birthday falls on a day when the children would otherwise be living with the other parent, that other parent will facilitate the children speaking with the parent having the birthday at a time agreed between the parties but failing agreement between 6:00pm and 7:00pm that day.

12.

Each parent notify the other as soon as reasonably practicable of any serious illness of injury affecting the children, and is at liberty to contact any doctor or hospital treating the children to obtain information.

13.

In the absence of an emergency, each parent is to notify and gain the consent of the other of any proposed medical treatment by a general practitioner or paediatrician or other specialist prior to any medical treatment taking place, provided that consent for this treatment is not unreasonably withheld. Each parent will further notify the other of the name of any medical professional who treats the children whilst the children are in that parent’s care.

14.

The parties communicate with each other via a communication book in relation to, or to facilitate arrangements for the children.

AND IT IS NOTED THAT on occasion, should the Father travel to Sydney and wish to spend time with the children, the Mother will use all her best endeavours to facilitate any time additional to these Orders with the children, upon the Father providing reasonable notice of at least 48 hours prior to that time commencing.

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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