JEB & SJL - [2006] FamCA 540

[2006] FamCA 540

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA  Appeal No SA6 of 2006
AT ADELAIDE  File No ADF2493 of 2001

BETWEEN:

JEB
Appellant Wife
- and -

SJL
Respondent Husband

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & WARNICK JJ
DATE OF HEARING:                 26 May 2006
DATE OF JUDGMENT:             26 May 2006

APPEARANCES: Mr Berman of Counsel, instructed by Robinson & Mason, Level 3, 74 Pirie Street, Adelaide, SA 5000, appeared on behalf of the Appellant Wife.

Ms Dickson of Counsel, instructed by Jarrett Legal Pty Ltd, PO Box 155, Unley SA 5061, appeared on behalf of the Respondent Husband.

JEB & SJL

SA6 OF 2006

CORAM: KAY, HOLDEN & WARNICK JJ

DATE OF HEARING: 26 May 2006

DATE OF JUDGMENT: 26 May 2006

Catchwords: CHILDREN – Residence – Week about shared residence ordered by trial Judge – 6 year old child thriving in current situation residing with mother and enjoying alternate weekend contact – Trial Judge identified positive factors for a shared parenting arrangement but failed to identify any reason for altering a successful status quo – Inadequate reasons – Appeal allowed and matter remitted for retrial.

KAY J:

This is the mother's appeal against orders made by Morgan J on 20 January 2006, wherein her Honour ordered that the child of the parties, D born June 1999, should reside with each of the parties on a weekabout basis.

There were competing proceedings before her Honour concerning the amount of time the child should spend with each parent. The mother's proposition was that the arrangement that had been in existence for some time should continue, namely for what I will express as alternate weekends and half the school holidays the child should remain in her father's care, otherwise she should live primarily with the mother. The father was urging the trial judge to make the orders that she ultimately made.

Background

The background to the matter is fairly succinctly expressed by her Honour in her reasons for judgment. The parties were married in December 1998, D was born in June 1999 and there was a separation in June 2000.

The parties have each repartnered. The father was married to his present wife, with whom he had been living since September 2000, and they had a new child, a young baby boy, in October 2004.

The mother had married in December 2002. There were two children of her husband, who were living with them five days a fortnight.

The mother had remained at all times living together with D in South Australia. The father's employment had taken him to New South Wales from 2001 until July 2003. The parties then thereafter lived in close proximity to each other. The parties had an arrangement that was reached once the father was back in South Australia of contact Friday night until Monday every alternate weekend and then there were arrangements made for school holiday contact. There was a great degree of cooperation and flexibility…

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.

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Details

Case: [2006] FamCA 540
Decision Date: 26 May 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Kay, Holden, and Warnick JJ, considered an appeal concerning parenting orders made in the Federal Circuit Court. The dispute involved the arrangements for two children, JEB and SJL, with the primary issue being the father's application to relocate with the children to Queensland. The mother opposed this relocation, seeking orders for the children to remain living with her in New South Wales.

The central legal question before the Full Court was whether the primary judge erred in finding that the father had discharged his onus to establish that the proposed relocation was in the best interests of the children. This involved an assessment of whether the primary judge had given sufficient weight to the presumption of equal shared parental responsibility and the presumption that children should spend substantial and significant time with each parent, as stipulated by the *Family Law Act 1975* (Cth). The court also considered whether the primary judge had adequately considered the potential impact of the relocation on the children's relationship with their mother and their broader family and community connections.

The Full Court found that the primary judge had failed to properly apply the principles of the *Family Law Act* in assessing the best interests of the children. Specifically, the court held that the primary judge had placed undue emphasis on the father's desire to relocate and had not sufficiently explored alternative arrangements that would allow the children to maintain meaningful relationships with both parents. The court reiterated that the paramount consideration in all parenting matters is the best interests of the child, which requires a holistic assessment of all relevant factors, including the child's right to know and be cared for by both parents.

The Full Court allowed the appeal, set aside the parenting orders made by the Federal Circuit Court, and remitted the matter back to the Federal Circuit Court for redetermination.

Orders