Kaule & Brown - [2015] FamCA 480

FAMILY COURT OF AUSTRALIA

KAULE & BROWN

[2015] FamCA 480

FAMILY LAW – CHILDREN – FINAL ORDERS – Best interests – interstate relocation – where the parties agree the child should live with the mother – where the mother seeks to relocate from Melbourne to Brisbane to pursue an employment opportunity and live near her family – where the mother complains of a lack of suitable job opportunities in Melbourne – where the father has professional and other ties to Melbourne – where both parties are competent and appropriate parents – where the father wants the child to learn French due to the family connection – where the child is just over one year old – ordered that the child remain in Melbourne with gradual build-up of overnight time to equal time with the father.

FAMILY LAW – PROPERTY – FINAL ORDERS – where cohabitation was for two and a half years – where there is one young child of the relationship – where the parties never commingled their finances – where parties were each responsible for their own liabilities during the relationship – where all property was acquired before the commencement of the relationship – where both parties have significant earning capacities – held that it is not just and equitable to alter the parties’ property interests.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

A v A (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
Bolitho v Cohen (2005) FLC 93-224
Mazorski & Albright [2007] FamCA 520
Morgan & Miles [2007] FamCA 1230
Mulvaney & Lane (2009) FLC 93-904
Stanford v Stanford (2012) 247 CLR 108
Bevan & Bevan (2014) 51 Fam LR 363
U v U (2002) FLC 93-112

APPLICANT:

Mr Kaule

RESPONDENT:

Ms Brown

FILE NUMBER:

MLC

4757

2014

DATE DELIVERED:

29 May 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATES:

16 – 20 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Robinson

SOLICITOR FOR THE APPLICANT:

Blackwood Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dickson QC and
Mr Barbayannis

SOLICITOR FOR THE RESPONDENT:

Cooper Grace Ward Lawyers

Orders

IT IS ORDERED THAT

All previous orders be discharged.
The father and mother have equal shared parental responsibility for the child B Kaule born on … 2013 (“the child”).
The mother be restrained from relocating the residence of the child from the Greater Melbourne Metropolitan area without the written consent of the father or court order.
The child live with the father as follows:
(a) until 1 September 2015:
(i)each Tuesday and Friday from 8.30 am until 5.30 pm;
(ii)on alternate weekends from 9.00 am on Saturday until:
A.9.00 am on Sunday in the first fortnight;
B.2.00 pm on Sunday in the second fortnight; and
C.thereafter 5.30 pm on Sunday.
The question of the child’s further time with the father be reserved to the mention of this matter on 9 July 2015.
The child live with the mother at all other times subject 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 Kaule & Brown

Details

AGLC: Kaule & Brown [2015] FamCA 480
Case: [2015] FamCA 480
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case involved a dispute between the mother and father regarding final orders concerning their young child and property settlement. The mother sought to relocate from Melbourne to Brisbane with the child to pursue an employment opportunity and be closer to her family, citing a lack of suitable job prospects in Melbourne. The father, who had professional and other ties to Melbourne, opposed the relocation and desired the child to learn French due to family connections. Both parties were deemed competent and appropriate parents.

The court was required to determine the best interests of the child in relation to the proposed interstate relocation and the division of the parties' property. Specifically, the court had to consider the likely effect of any changes in the child's circumstances, including separation from either parent or other significant individuals, and the impact of the proposed relocation on the child's relationship with his father. The court also had to consider whether it was just and equitable to alter the parties' property interests, given the circumstances of their cohabitation and property acquisition.

In relation to the child, the court found that the mother's proposed relocation would represent a significant change in the child's life, involving separation from his father and a reduction in time spent with both parents. The court noted that while the child would have the support of his maternal grandparents, their role was that of grandparents, not parents. The court considered the father's desire for joint decision-making regarding the child's care. Regarding property, the court found that given the short duration of the cohabitation, the parties' financial independence during the relationship, and the acquisition of all property before the relationship commenced, it was not just and equitable to alter their property interests.

Consequently, the court ordered that the child remain in Melbourne with the father, with a gradual build-up of overnight time to equal time with the father. The mother was restrained from relocating the child from the Greater Melbourne Metropolitan area without the father's consent or a court order. All previous orders were discharged, and all extant applications, including those for property settlement and spousal maintenance, were dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

All previous orders be discharged.

The father and mother have equal shared parental responsibility for the child B Kaule born on … 2013 (“the child”).

The mother be restrained from relocating the residence of the child from the Greater Melbourne Metropolitan area without the written consent of the father or court order.

The child live with the father as follows:

(a) until 1 September 2015:

(i) each Tuesday and Friday from 8.30 am until 5.30 pm;

(ii) on alternate weekends from 9.00 am on Saturday until:

A. 9.00 am on Sunday in the first fortnight;

B. 2.00 pm on Sunday in the second fortnight; and

C. thereafter 5.30 pm on Sunday.

The question of the child’s further time with the father be reserved to the mention of this matter on 9 July 2015.

The child live with the mother at all other times subject to the further orders with respect to the time the child spends with the father.

Notwithstanding any order to the contrary herein, the father’s time with the child be suspended and the child be returned to the mother on the Mother’s Day weekend and the father’s weekend with the child be substituted for the mother’s next weekend with the child.

For the purposes of the time the father spends with the child, the father or his nominee shall collect the child from the mother’s residence at the commencement of that time and the mother or her nominee shall be responsible for collecting the child from the father’s residence at the conclusion of the child’s time with the father save that if the child is in child care, kindergarten or school he will be collected from or delivered to childcare, kindergarten or school in accordance with these orders.

In the event that the mother secures a locum position, she is permitted to travel with the child for the purposes of that locum and the father’s time is suspended for the duration of that travel provided that:

(a) the mother give the father not less than 21 days’ notice in writing that she has secured a locum position, the proposed dates of that position and the location in which it is to occur;

(b) on one occasion in each 12-week period;

(c) the locum position cannot be more than seven days if that position is outside the state of Victoria or fourteen days if the position is in the State of Victoria;

(d) the period of that locum position not to include the child’s birthday, the father’s birthday, Father’s Day or Christmas Day if it is the father’s turn to spend Christmas Day with the child;

(e) in the event the father elects to travel to the location of the locum position, the father spend time with the child at such times as he would otherwise have been entitled to spend with the child had he remained in Melbourne;

(f) in the event the father elects not to travel to the location of the locum position, the father communicate with the child by Skype as agreed by the parties in writing and failing agreement as follows according to Eastern Standard Time:

(i) 6:00 pm Tuesday and Thursday; and

(ii) 5:00 pm Sunday.

10.

Subject to paragraph 9 in the event that either parent wishes to travel overseas with the child, the travelling party shall provide the following information to the other parent within at least 45 days prior to departure:

(a) the proposed dates of travel;

(b) the ship/flight details; and

(c) a full itinerary of the trip, including all addresses and phone contact numbers for the period when the child will be travelling.

11.

The parties are to sign all documents and do all things necessary to obtain or renew the child’s passport within seven days of receiving a request from the other party, and the associated costs to be shared equally by the parties.

12.

The parent who last travelled overseas with the child retain the child’s passport until it is required by the other parent, and the passport to be provided to the travelling party within seven days if not already in their possession.

13.

Notwithstanding any order to the contrary herein, the parties each be restrained from causing the child to be removed from the Commonwealth of Australia to any country in respect of which the Australian Department of Foreign Affairs and Trade has at the time of intended travel the travel advisory “Reconsider your need to travel” or “Do not travel” without the written consent of the other party.

14.

Each party shall keep the other informed as to their residential address, mobile telephone number and e-mail address and advise the other of any change to those within 24 hours of such change.

15.

Each party be at liberty to request from the Principal of any school attended by the child copies of school reports, newsletters, event notices, and school photographs at their respective cost.

16.

Each party be at liberty to attend at all school events, concerts, parent/teacher interviews, sporting and extra-curricular competitions and events and any other school function ordinarily attended by parents.

17.

Each party shall advise the other as soon as practicable of any serious injury or significant health concern or emergency medical or dental treatment concerning the child whilst they are in the parties’ care.

18.

The father and mother be and are hereby restrained by themselves, their servants and/or agents from:

(a) denigrating, criticising and/or otherwise demeaning the other party or any other member of that party’s family in the sight and/or hearing and/or presence of the child; and

(b) discussing these proceedings with or in the presence of hearing of the child.

19.

The matter be listed for mention at 9.30am on 9 July 2015.

20.

All extant applications, including the applications for property settlement and the wife’s application for spousal maintenance, be otherwise dismissed.

*These orders have been amended where underlined to accord with the orders as pronounced by Justice Macmillan on 29 May 2015.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Although the parties separated less than six months after the child’s birth they continued to live separately and apart under the one roof until September 2014. Since separation the mother has applied for a child support assessment and the father has paid child support pursuant to that assessment. The father and mother have otherwise generally been responsible for the costs associated with the child’s care when he is in their respective care. I am satisfied that both the father and the mother have fulfilled their obligations to maintain the child. (3)(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i)either of his or her parents; or (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; I have already dealt with the possible impact of the child’s relocation upon his relationship with the father. It is this consideration that lies at the heart of the case. However in my view it is not just the impact upon the child of a separation from his father that is an issue. It is the mother’s case is once she returns to Brisbane and takes up her fellowship she will be working full time and the child will be in the care of her parents during work hours. The mother will be required to work from 8.00 am to 5.00 pm each day with added time for travelling to and from work, two to three weekend shifts per term of one day each and some on call weekend work one week in three. The mother’s proposals represent a significant change in the child’s life. Not only would the child be separated from his father and the life he knows, but hand in hand with the reduction in the time he spends with the father is that he would be spending significantly less time with his mother. Although I have no doubt that the child will love and enjoy time with his maternal grandparents and that they will continue to play an important part in the child’s life, their relationship is one of grandparent and grandchild, not that of a parent. As Dr W said in her updated report “[The child] will go from having 2 very positive, appropriate, loving, and involved parents in his life, to effectively being primarily cared for by the maternal grandparents during the day, and the mother at all other times….”. Whilst it is true that if the mother remains in Melbourne it may be necessary for her to return to work, possibly on a full time basis and necessary for the child to be in child care, it is also the case that he would continue to spend significant time with his father. In his Further Amended Initiating Application the father sought an order that neither party enrol or change the child’s enrolment in a day care facility without first obtaining a written agreement from the other party. Whilst the wording of this order may be a little heavy handed having heard the father’s evidence I am satisfied that the intent of the proposed order is to ensure that the parties make joint decisions with respect to the child’s care and not as submitted by counsel for the mother part of a broader attempt to exercise control over the mother’s life. Hopefully as the parties will be living in the same city they will be able to make arrangements which both promote the child’s interests and maximise the time they are each able to spend with him.