Jabot and Kristensen - [2018] FCCA 639

FEDERAL CIRCUIT COURT OF AUSTRALIA

JABOT & KRISTENSEN

[2018] FCCA 639

Catchwords:
FAMILY LAW – Parenting – 4 year old child – mother wishes to relocate with child from Sydney to (omitted) – father opposed to relocation – where child is to live and what time he is to spend with the non-resident parent.

Legislation:

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

Cases cited:

Browne & Dunn (1893) 6 R 67
Goode & Goode (2007) 36 FamLR 422
Jurchenko & Foster (2014) FLC 93-598
Lansa & Clovelly [2010] FamCA 80
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

U & U [2002] HCA 36

Applicant:

MR JABOT

Respondent:

MS KRISTENSEN

File Number:

PAC 1514 of 2017

Judgment of:

Judge Obradovic

Hearing date:

5 March 2018

Date of Last Submission:

6 March 2018

Delivered at:

Parramatta

Delivered on:

29 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Ladopoulos

Solicitors for the Applicant:

John Spence & Associates

Appearing for the Respondent:

Mr Walkom

Solicitors for the Respondent:

Walkom Lawyers

ORDERS

All prior parenting orders are discharged.
The parents shall have equal shared parental responsibility for the child [X] born (omitted) 2014.
The child shall live with the mother.
The mother is permitted to relocate the child’s residence to (omitted) in Queensland.
Until the child commences school, unless the mother and father agree otherwise in writing the child shall spend time with the father as follows:
(a)Until the child relocates to Queensland:
(i)for two nights in week 1 and each alternate week thereafter from after childcare on Friday (or 4pm if there is no childcare) to Sunday evening at 5pm; and
(ii)for two nights in week 2 and each alternate week thereafter from after childcare on Thursday (or from 4pm if there is no childcare) to 10am on Saturday.
(b)Once the child has relocated to Queensland, for a period of one week every five weeks, commencing on the fifth Friday after the child relocates to Queensland; and
(c)Such other times as the mother and father may agree to in writing.
Once the child commences school, unless the mother and father agree otherwise in writing the child shall spend time with the father as follows:
(a)On the fifth weekend of each school term, from Friday until Sunday;
(b)During the school holiday periods at the end of Term 1 each year, from the last day of school term until the second Monday of the school holiday period;
(c)During the school holiday periods at the end of Term 2 each year, from the second Sunday of the school holiday period until the last Sunday of the school holiday period;
(d)During the school holiday periods at the end of Term 3 each year, from the last day of school term until the second Monday of the school holiday period;
(e)During the school holiday period at the end of Term 4…

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 Jabot and Kristensen

Details

AGLC: Jabot and Kristensen [2018] FCCA 639
Case: [2018] FCCA 639
Decision Date: 29 March 2018

CaseChat Overview and Summary

In the matter of Jabot and Kristensen, heard by Judge Obradovic, the dispute concerned parenting orders for the child [X]. The court was required to determine the future living arrangements and time spent between the child and each parent, including the mother's proposed relocation with the child to Queensland.

The court's reasoning focused on establishing a framework for equal shared parental responsibility while acknowledging the child's primary residence with the mother. The orders discharged all prior parenting arrangements and stipulated that the child would live with the mother, who was permitted to relocate the child to Queensland. Specific provisions were made for the child's time with the father, both before and after the relocation, and after the child commenced school, with detailed arrangements for school holidays and special days like Father's Day and Mother's Day.

The court also addressed the practicalities of travel for the child, particularly for interstate visits, and mandated regular communication between the child and the father via video call. A notable condition was the father's agreement to abstain from illicit drug use and alcohol consumption while spending time with the child. The final orders discharged all prior parenting orders and established these new arrangements.

Orders

Orders of the court

All prior parenting orders are discharged.

The parents shall have equal shared parental responsibility for the child [X] born (omitted) 2014.

The child shall live with the mother.

The mother is permitted to relocate the child’s residence to (omitted) in Queensland.

Until the child commences school, unless the mother and father agree otherwise in writing the child shall spend time with the father as follows:

(a) Until the child relocates to Queensland:

(i) for two nights in week 1 and each alternate week thereafter from after childcare on Friday (or 4pm if there is no childcare) to Sunday evening at 5pm; and

(ii) for two nights in week 2 and each alternate week thereafter from after childcare on Thursday (or from 4pm if there is no childcare) to 10am on Saturday.

(b) Once the child has relocated to Queensland, for a period of one week every five weeks, commencing on the fifth Friday after the child relocates to Queensland; and

Once the child commences school, unless the mother and father agree otherwise in writing the child shall spend time with the father as follows:

(a) On the fifth weekend of each school term, from Friday until Sunday;

(b) During the school holiday periods at the end of Term 1 each year, from the last day of school term until the second Monday of the school holiday period;

(c) During the school holiday periods at the end of Term 2 each year, from the second Sunday of the school holiday period until the last Sunday of the school holiday period;

(d) During the school holiday periods at the end of Term 3 each year, from the last day of school term until the second Monday of the school holiday period;

(e) During the school holiday period at the end of Term 4 each year, as follows:

(i) Where the school holiday period commences in a year ending in an even number, for a period of three weeks commencing on the second day after the last day of school term; and

(ii) Where the school holiday period commences in a year ending in an odd number, for a period of two weeks ending on the second last day of the school holiday period; and

(iii) Such other times as the mother and father may agree to in writing.

Unless the mother and father agree otherwise in writing, if Father’s Day does not fall on an occasion that the child is to spend with the father pursuant to these orders:

(a) The father can elect to spend time with the child on such Father’s Day weekend either by:

(i) Moving one of the periods provided for in order 5(a) or 6(a) above or;

(ii) Having an additional weekend to what is provided for in order 5(a) or 6(a) above; and

(b) The father must notify the mother of his election in writing by no later than 1 August each year.

Unless the mother and father agree in writing, if Mother’s Day falls on an occasion that the child is to spend time with the father pursuant to order 5 or 6 above:

(a) The child’s time with the father shall be suspended on such occasion;

(b) The father can elect to spend time with the child for an equivalent length of time to the suspended occasion, either one week earlier or one week later than the suspended occasion; and

For the purposes of facilitating orders 5 to 8 above and subject to order 10, unless the mother and the father agree otherwise in writing, once the child has relocated to Queensland:

(a) The mother shall:

(i) Arrange for the child to fly from Queensland to Sydney together with an accompanying adult, such flight to arrive at Sydney no later than 8pm on the day that the child is to start spending time with the father;

(ii) Pay for the child and the accompanying adult flight; and

(iii) Notify the father of the flight details, including departure and arrival times and the name of the accompanying adult, such notification to be in writing and at least 48 hours in advance of the flights arrival at Sydney.

(b) The father shall:

(i) Arrange for the child to fly from Sydney to the (omitted) together with an accompanying adult, such flight to arrive at the (omitted) by no later than 8pm on the day that the child is to finish spending time with the father; and

(ii) Pay for the child and the accompanying adult flight, such notification to be in writing and at least 48 hours in advance of the flights arrival at the (omitted).

10.

Until the child attains 9 years of age, the child is to be accompanied by either parent responsible for their transportation or an appropriate family member of that party and unless otherwise agreed in writing between the parties the child is to be transported by commercial air travel.

11.

The child shall communicate with the father by video call each Tuesday, Thursday and Sunday between 6.30pm and 7.30pm Eastern Standard Time, with both parents to do all things necessary to facilitate such communication.

12.

Remove all outstanding issues from the list of cases awaiting finalisation.

THE COURT NOTES THAT

A. The father has agreed to not use illicit drugs, including cannabis or consume alcohol whilst spending time with the child.

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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