Jobe and Dakin - [2010] FMCAfam 10

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOBE & DAKIN

[2010] FMCAfam 10

FAMILY LAW – Children – mother wishes to relocate the residence of child from Tasmania to Melbourne.

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 65DAA
Federal Magistrates Court Rules 2001 (Cth), r.15.07

P & P [2006] FMCAfam 518
Morgan & Miles (2007) FLC 93-343
AMS v AIF; AIF v AMS (2007) FLC 93-343
A v A; Relocation Approach (2000) FLC 92-035
U v U (2002) 211 CLR 238, (2002) FLC 93-112
Bolitho and Cohen (2005) FLC 93-224
R and R: Children's wishes (2000) FLC 93-000
H v W (1995) FLC 92-598
W and W: Abuse Allegations; Expert Evidence (2001) FLC 93-085

Applicant:

MS JOBE

Respondent:

MR DAKIN

File Number:

LNC 476 of 2009

Judgment of:

Roberts FM

Hearing dates:

19 & 20 November 2009

Date of Last Submission:

20 November 2009

Delivered at:

Launceston

Delivered on:

12 January 2010

REPRESENTATION

Counsel for the Applicant:

Mr Weil

Solicitors for the Applicant:

Berry Family Law

Counsel for the Respondent:

Mr Tucker

Solicitors for the Respondent:

Grant Tucker

ORDERS

That MR DAKIN (“the Father”) and MS JOBE (“the Mother”) have equal shared parental responsibility for [X] born [in] 1998 (“the child”).
That the child is to live with the Mother.
That the Mother has leave to relocate with the child to Melbourne, Victoria.
That the child is to spend time with the Father as agreed between the Father and the Mother, but failing agreement as follows:
(a)In Tasmania for half of all the child’s school holidays, being the first half of all such school holidays that start in even numbered years and the second half of all such school holidays that start in odd numbered years;
(b)In Tasmania for not less than three weekends during each school term;
(c)By telephone, Skype or internet video conferencing for reasonable periods at reasonable times.
That the Mother is to book and pay for the child’s return air travel between Melbourne and Launceston in order to comply with paragraphs (a) and (b) of Order No. 4 hereof.

IT IS NOTED that publication of this judgment under the pseudonym Jobe & Dakin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

LNC 476 of 2009

MS JOBE

Applicant

And

MR DAKIN

Respondent

REASONS FOR JUDGMENT

In my opinion, the difficulties inherent in applications to relocate children could not have been better stated than by Brown FM in P & P[1], when he said:
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees…

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 Jobe and Dakin

Details

AGLC: Jobe and Dakin [2010] FMCAfam 10
Case: [2010] FMCAfam 10
Decision Date: 12 January 2010

CaseChat Overview and Summary

Jobe and Dakin involved a dispute between the child’s parents over shared parental responsibility and living arrangements. The parents, referred to as the Mother and the Father, sought a resolution from the Family Court of Australia concerning their child born in 1998. The legal issues before the Court centred on determining the allocation of shared parental responsibility, deciding the primary residence of the child, and setting out a detailed contact and relocation arrangement. Specifically, the Court had to address whether the Mother should be granted permission to relocate to Melbourne and how to structure the child’s contact with the Father.

The Court found that both parents should have equal shared parental responsibility for the child. The Court determined that the child should live with the Mother but granted the Mother leave to relocate to Melbourne. The detailed contact arrangement involved the child spending half of the school holidays in Tasmania, with the specific halves alternating annually, three weekends each school term in Tasmania, and regular communication via telephone, Skype, or internet video conferencing. The Mother was also ordered to book and pay for the child's return airfares to facilitate these arrangements.

The Court's decision emphasised the importance of maintaining a strong relationship between the child and both parents, while also considering the practicalities of the relocation. The Court noted that the proposed arrangement aimed to balance the child's need for stability and the parents' respective roles in the child's life. The outcome reflects the Court's focus on the best interests of the child, ensuring a stable and loving environment while fostering meaningful relationships with both parents.

Orders

Orders of the court

That MR DAKIN (“the Father”) and MS JOBE (“the Mother”) have equal shared parental responsibility for [X] born [in] 1998 (“the child”).

That the child is to live with the Mother.

That the Mother has leave to relocate with the child to Melbourne, Victoria.

That the child is to spend time with the Father as agreed between the Father and the Mother, but failing agreement as follows:

(a) In Tasmania for half of all the child’s school holidays, being the first half of all such school holidays that start in even numbered years and the second half of all such school holidays that start in odd numbered years;

(b) In Tasmania for not less than three weekends during each school term;

That the Mother is to book and pay for the child’s return air travel between Melbourne and Launceston in order to comply with paragraphs (a) and (b) of Order No. 4 hereof.

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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