Judd and Cabelka - [2008] FMCAfam 1469

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUDD & CABELKA

[2008] FMCAfam 1469

FAMILY LAW – Children – parenting orders – relocation – best interests.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65AA

Davis & Spring [2007] FamCA 1149
Manzer & Almy [2008] FMCA 901
Talcott & Oblander [2008] FMCAfam 1135
CH and TW [2006] FMCAfam 607
Bale and Jenkins [2007] Fam CA 809
A v A (Relocation Approach) (2000) 26 Fam LR 382
Bolitho v Cohen (2005) 33 Fam LR 471
Taylor v Barker (2007) 37 Fam LR 461
M v S (2006) 37 Fam LR 32
Godfrey and Sanders [2007] FamCA 102

Freedom of Movement in an Era of Shared Parenting: The Difference in Judicial Approaches to Relocation Patrick Parkinson, Federal Law Review Vol. 36, 145

Applicant:

MR JUDD

Respondent:

MS CABELKA

File Number:

CRC 140 of 2008

Judgment of:

Scarlett FM

Hearing dates:

22 & 23 September 2008

Date of Last Submission:

23 September 2008

Delivered at:

Coffs Harbour

Delivered on:

15 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr Priestley

Solicitors for the Applicant:

Fishburn Watson O’Brien

Counsel for the Respondent:

Mr Theobald

Solicitors for the Respondent:

Slater & Gordon

ORDERS

That the parties have equal shared parental responsibility for the children [W] born in 2001, [X] born in 2002, [Y] born in 2004 and [Z] born in 2005.
That the parties have sole parental responsibility for the children while the children live with them.
The respondent mother is restrained from removing the said children from the Coffs Harbour area until 30 December 2008.
Whilst the mother resides in the Coffs Harbour area the said children are to live with the mother and spend time with and communicate with the father as follows:
(a)Every second weekend from 5:00 pm on Friday afternoon until 5:00 pm on the Sunday;
(b)On the following Wednesday afternoon with the father collecting the children at 5:00 pm and returning them to the mother’s residence at 6:30 pm;
(c)On the other Wednesday from 5:00 pm to Thursday morning at 8:50 am, being the beginning of the school day;
(d)For half of each school holiday period as agreed between the parties. If no agreement is reached then for the first half of each school holiday period in even-numbered years and the second half of each school holiday period in odd-numbered years and alternating thereafter;
(e)Liberal email contact; and
(f)Liberal telephone contact with the father to initiate the call to the mother’s landline.
From and after the time that the mother and children relocate to the [N] area the children are to live with the mother and spend time and communicate with the father as follows:
(a)For two weekends each school term as agreed between the parties. For the purpose of changeover the parties are to meet at an agreed half way location. Alternatively, if agreed between the parties, one party is to drive to the other party’s home at the commencement of contact and the other party is to return the children to the…

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 Judd and Cabelka

Details

AGLC: Judd and Cabelka [2008] FMCAfam 1469
Case: [2008] FMCAfam 1469
Decision Date: 15 December 2008

CaseChat Overview and Summary

The case of Judd and Cabelka involved a dispute between the father and mother of four children regarding their shared parental responsibility and living arrangements. The case was heard in the Family Court of Australia. The primary concern was determining the best living arrangements for the children and the extent of each parent's involvement in their lives.

The court was required to decide the allocation of parental responsibility and the specifics of the children's living arrangements, including the frequency and conditions of the father's access. The court also had to consider the potential impact of the mother's relocation on the children's living arrangements and the need for mediation if such a relocation occurred.

The court decided that both parents should share parental responsibility for the children equally. It was ruled that the children would live with their mother but would have substantial time with their father under a detailed schedule. The court also imposed restrictions on the mother regarding the removal of the children from the Coffs Harbour area until a specified date and mandated that neither parent use illicit drugs while caring for the children. If the mother relocated, the parents were required to mediate any changes to the current orders.

The court issued comprehensive orders that outlined the shared parental responsibilities, the specific visitation schedule, and conditions for contact between the father and the children. The orders also included provisions for the children's living arrangements post the mother's relocation and the need for mediation in case of such relocation.

Orders

Orders of the court

That the parties have equal shared parental responsibility for the children [W] born in 2001, [X] born in 2002, [Y] born in 2004 and [Z] born in 2005.

That the parties have sole parental responsibility for the children while the children live with them.

The respondent mother is restrained from removing the said children from the Coffs Harbour area until 30 December 2008.

Whilst the mother resides in the Coffs Harbour area the said children are to live with the mother and spend time with and communicate with the father as follows:

(a) Every second weekend from 5:00 pm on Friday afternoon until 5:00 pm on the Sunday;

(b) On the following Wednesday afternoon with the father collecting the children at 5:00 pm and returning them to the mother’s residence at 6:30 pm;

(d) For half of each school holiday period as agreed between the parties. If no agreement is reached then for the first half of each school holiday period in even-numbered years and the second half of each school holiday period in odd-numbered years and alternating thereafter;

(e) Liberal email contact; and

(f) Liberal telephone contact with the father to initiate the call to the mother’s landline.

From and after the time that the mother and children relocate to the [N] area the children are to live with the mother and spend time and communicate with the father as follows:

(a) For two weekends each school term as agreed between the parties. For the purpose of changeover the parties are to meet at an agreed half way location. Alternatively, if agreed between the parties, one party is to drive to the other party’s home at the commencement of contact and the other party is to return the children to the first party at the end of contact;

(b) At any other time when the father is in the [N] area with the father to provide the mother with two weeks’ written or emailed notice of his intention to spend time with the children;

(c) For half of the Spring and Autumn school holiday periods with changeovers as arranged and agreed between the parties;

(d) For the entire period of the Winter school holiday period;

(e) For the Father’s Day weekend in each year.

(f) Liberal email contact; and

(g) Liberal telephone contact with the father to initiate the call to the mother’s landline and if the children request to telephone the father, then the mother is to initiate the call to the father’s landline.

The children are to spend the period from 30 December 2008 to

5 January 2009 with the mother and for this purpose the mother is to collect the children from the father and deliver to the father or otherwise as agreed between the parties.

The children are to live with the mother on the Mother’s Day weekend in each year.

Neither party is to administer to himself or herself any illicit drug at any time when any of the children is in his or her care or for any period of twelve (12) hours beforehand.

If the father relocates out of the Coffs Harbour area the parties are to arrange and attend mediation to discuss changes to these Orders.

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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