Knill and Beckett - [2019] FamCA 862

FAMILY COURT OF AUSTRALIA

KNILL & BECKETT

[2019] FamCA 862

FAMILY LAW – PARENTING – where there is an application for the Mother to relocate to Tasmania – where the Father opposes the relocation – where the Mother alleges family violence – where not all of the allegations of family violence are made out – where there is deep conflict between the parties – where the Father is unable to control his aggressive and combative manner – where the Mother experiences mental health difficulties – where there are prospects for improved mental health if the Mother moves to Tasmania – considerations as to the impact of the Mother’s mental health on her parenting – where there can be no confidence that the Mother will support the child’s relationship with the Father – where it is uncertain what time the Father will be able to spend with the child if the Mother relocates – where the best interests of the child are the paramount, but not the sole consideration – where the freedom of movement of the Mother is an important consideration.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

Adamson & Adamson [2014] FamCAFC 232
AMS v AIF [1999] HCA 26
Babcock & Wadell [2019] FamCAFC 129
Devries & Anor v Australian National Railways [1993] HCA 78
Donaghey & Donaghey (2011) 45 Fam LR 183
Morgan v Miles (2007) FLC 93-343
MRR v GR [2010] HCA 4
Phillips & Hansford [2019] FamCAFC 165
Sayer & Radcliffe (2012) 48 FamLR 298
Taylor and Barker [2007] FamCA 1246
U & U [2002] HCA 36

APPLICANT:

Mr Knill

RESPONDENT:

Ms Beckett

INDEPENDENT CHILDREN’S LAWYER:

Mrs A. Evans

FILE NUMBER:

CAC

712

2016

DATE DELIVERED:

21 November 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

10 - 12 October 2018; 15 - 19 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G. Howard

SOLICITOR FOR THE APPLICANT:

Neilan Stramandinoli Family Law

COUNSEL FOR THE RESPONDENT:

Ms A. Petrie

SOLICITOR FOR THE RESPONDENT:

Phelps Reid Foster Johnson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs A. Evans

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Evans Family Lawyers

Orders

IT IS ORDERED:

That all previous Orders be discharged.

Parental Responsibility

That the Mother have sole parental responsibility for the child, B born in 2015 (“B”).

Living Arrangements

That B live with the Mother and the Mother is at liberty to move B’s place of residence to the Tasmania region of Tasmania.

Time with the Father prior to the Mother’s move to Tasmania

Unless otherwise agreed in writing by the parties, B shall spend time with the Father prior to the Mother’s move to Tasmania as follows:
a)During ACT school term time, each alternate weekend from 3.00pm Friday until 9.00am Monday, commencing 29 November 2019;
b)During ACT school holiday time, as provided for below in respect of following the Mother’s move to Tasmania, save that references to the Tasmanian school holiday periods are to be read as if they…

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 Knill and Beckett

Details

AGLC: Knill and Beckett [2019] FamCA 862
Case: [2019] FamCA 862
Decision Date: 21 November 2019

CaseChat Overview and Summary

This matter concerned an application by the Mother for orders regarding parental responsibility and the living arrangements for the child, B, born in 2015. The dispute arose in the context of the Mother seeking to relocate B to Tasmania.

The court was required to determine the issue of parental responsibility for B and to make orders regarding B's living arrangements, specifically addressing the practicalities of time spent with the Father both before and after the Mother's proposed move to Tasmania. The court also had to consider the allocation of travel costs associated with the handover arrangements.

Gill J ordered that the Mother have sole parental responsibility for B and that B live with the Mother, with liberty for the Mother to move B's place of residence to Tasmania. The court then set out detailed orders for the time B was to spend with the Father, distinguishing between periods before and after the move to Tasmania, and specifying handover arrangements at various airports and times. The court also allocated responsibility for travel costs, with the Mother being solely responsible for costs associated with handovers in Canberra and the Father solely responsible for costs associated with handovers in Hobart.

Orders

Orders of the court

IT IS ORDERED:

That all previous Orders be discharged.

Parental Responsibility

That the Mother have sole parental responsibility for the child, B born in 2015 (“B”).

Living Arrangements

That B live with the Mother and the Mother is at liberty to move B’s place of residence to the Tasmania region of Tasmania.

Time with the Father prior to the Mother’s move to Tasmania

Unless otherwise agreed in writing by the parties, B shall spend time with the Father prior to the Mother’s move to Tasmania as follows:

a) During ACT school term time, each alternate weekend from 3.00pm Friday until 9.00am Monday, commencing 29 November 2019;

b) During ACT school holiday time, as provided for below in respect of following the Mother’s move to Tasmania, save that references to the Tasmanian school holiday periods are to be read as if they were references to the ACT school holiday periods;

c) Handovers occurring prior to the Mother’s move to Tasmania are to be effected in the following manner:

i) If the time coincides with time that B is at school or day care, then at the school or day care;

ii) Otherwise at the McDonalds at Suburb N, in which instance the Father must, unless excused in writing by the Mother, conduct the handover through a third party.

d) This Order (Order 4) will not apply if and when the Mother moves to Tasmania.

Time with the Father following the Mother’s move to Tasmania

Unless otherwise agreed in writing by the parties, B shall spend time with the Father following the Mother’s move to Tasmania during Tasmanian school term time as follows:

a) Handover to the Father for the commencement of time is to occur at the Hobart Airport at 5.00pm on Friday, and handover is to occur at the Hobart Airport to the Mother for the end of the time at 8am on Monday, on the 3rd, 6th and 9th weekends of the first and fourth school terms, and on the 3rd and 9th weekends of the second and third school terms; and

b) Handover is to occur to the Father at the Canberra Airport immediately following the arrival of the next reasonably available flight from Hobart after the end of school on Friday and handover is to occur to the Mother (or her nominee) at the Canberra Airport on the following Sunday for B to catch the last flight to Hobart, or the flight to Hobart occurring soonest after 5.00pm ACT time, whichever is earlier, on the 6th weekends of the second and third school terms.

Unless otherwise agreed in writing by the parties, B shall spend time with the Father following the Mother’s move to Tasmania during Tasmanian school holiday time as follows:

a) For the second half of the term 1, 2 and 3 school holidays, commencing on the Saturday closest to the midpoint of those holidays and ending on the Sunday closest to the commencement of the new term;

b) For the long summer school holiday periods:

i) In 2019, for a period of two weeks commencing on 23 December 2019;

ii) In even numbered years for a period of three weeks ending the Sunday immediately prior to the recommencement of the new school year;

iii) In odd numbered years for a period three weeks commencing on 23 December.

In relation to Order 5 unless otherwise agreed in writing:

a) The time provided for in Order 5(a) will only take place in the event that the Father advises (in writing and 28 days in advance) of his election to exercise the time with B in accordance with the Order;

b) The Father may, at his election made in writing fourteen days in advance, make the time for delivery to him of B later and or the time for B’s pickup from him earlier than otherwise provided for in Orders 5(a) and 5(b).

Once B is permitted by the airlines to travel on an unaccompanied basis:

a) The delivery to the Father at the Hobart Airport pursuant to order 5(a) may be to an airline at the Father’s written direction given 14 days in advance;

b) The return to the Canberra Airport in order 5(b) and 6(a) and (b) may be to the relevant airline on which B is travelling.

In relation to Order 6, unless otherwise agreed in writing:

a) Handover is to occur for Orders 6(a) and (b) to the Father at the Canberra Airport immediately following the arrival of the next reasonably available flight from Hobart after midday ACT time and handover is to occur to the Mother (or her nominee) at the Canberra Airport for B to catch the last flight to Hobart, or the flight to Hobart occurring soonest after 12.00pm ACT time, whichever is earlier.

10.

The Mother is solely responsible for the costs associated with travel where the obligation is to handover B in Canberra.

11.

The Father is solely responsible for the costs associated with travel where the obligation is to handover B in Hobart.

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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