FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANDI & FLETCHER | [2019] FCCA 38 |
| Catchwords: FAMILY LAW – Parenting – spend time with arrangements – family violence – where mother seeks to relocate to New Zealand with the child. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Connor & Hulett [2011] FamCA 196 |
| Applicant: | MS LANDI |
| Respondent: | MR FLETCHER |
| File Number: | HBC 796 of 2017 |
| Judgment of: | Judge Baker |
| Hearing date: | 21 - 23 November 2018 |
| Date of Last Submission: | 23 November 2018 |
| Delivered at: | Hobart |
| Delivered on: | 13 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mooney of Counsel |
| Solicitors for the Applicant: | Wallace Wilkinson and Webster |
| Counsel for the Respondent: | Self-Represented |
| Solicitors for the Respondent: | N/A |
ORDERS
The mother and father shall have equal shared parental responsibility for the child [X] born … 2015 (‘[X]’).
[X] shall live with the mother.
The mother be permitted to relocate [X]’s primary residence to the Location B area in New Zealand no earlier than 60 days from this date.
The mother be permitted to enrol [X] at the C School in Suburb D, Location B.
At any time whilst [X] is in his care, the Respondent father shall not consume:
(a)Alcohol to the point where his capacity to parent [X] is impacted (and in the event that the father exceeds .05 in a random breath or blood test, this would be sufficient to demonstrate that the father’s parental capacity has been impacted upon);
(b)Prescription drugs contrary to any prescription;
(c)Illicit drugs.
The father is hereby restrained from causing [X] to live or stay overnight on the father’s yacht unless specifically agreed in writing between the parties.
Subject to the father agreeing to move to New Zealand, the mother shall pay to the father the sum of $20,000.00 (‘the payment’) to assist the father with his relocation costs.
The payment shall be made as follows:
(a)$10,000.00 upon the father providing to the mother a copy of his resignation from E Employer and his proposed travel itinerary to New Zealand; and
(b)$10,000.00 upon the father notifying the mother of his arrival in New Zealand.
Neither party shall criticise or denigrate the party or the other party’s family in the presence of [X], or allow [X] to remain where any third party does so.
In the event the father has not, within 30 days of the date of his arrival in New Zealand, obtained accommodation and/or employment, the father shall do all acts and things to engage with a clinical psychologist.
If the father engages with the psychologist, the father shall follow all reasonable directions of the psychologist in respect of his therapy and treatment.
Within seven days of the father…
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- AGLC
- Landi and Fletcher [2019] FCCA 38
- Case
- [2019] FCCA 38
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to permit the mother to relocate the child to New Zealand, and if so, what parenting orders, including specific time spent arrangements, should be made. This involved assessing the impact of such a relocation on the child's relationship with both parents and ensuring appropriate provisions for their ongoing care and development. The court also had to consider conditions and financial arrangements to facilitate the father's continued involvement in the child's life, particularly if he chose to relocate to New Zealand himself.
Judge Baker made orders for equal shared parental responsibility, with the child to live with the mother. Crucially, the mother was permitted to relocate the child's primary residence to New Zealand no earlier than 60 days from the date of the orders, and to enrol the child at a specified school there. The orders also included specific conditions regarding the father's consumption of alcohol and drugs, and restrained him from having the child stay overnight on his yacht unless agreed. A significant financial provision of $20,000 was ordered to be paid by the mother to the father to assist with his relocation costs, contingent on him providing evidence of resignation from his employment and a travel itinerary. The court also detailed extensive provisions for the father to spend time with the child, both if he relocated to New Zealand and if he remained in Australia, with varying arrangements depending on his accommodation status in New Zealand. Further orders addressed communication between the child and the father, and the mother's obligation to send videos of the child to the father.
Orders
Orders of the court
1.
The mother and father shall have equal shared parental responsibility for the child [X] born … 2015 (‘[X]’).
2.
[X] shall live with the mother.
3.
The mother be permitted to relocate [X]’s primary residence to the Location B area in New Zealand no earlier than 60 days from this date.
4.
The mother be permitted to enrol [X] at the C School in Suburb D, Location B.
5.
At any time whilst [X] is in his care, the Respondent father shall not consume:
(a) Alcohol to the point where his capacity to parent [X] is impacted (and in the event that the father exceeds .05 in a random breath or blood test, this would be sufficient to demonstrate that the father’s parental capacity has been impacted upon);
(b) Prescription drugs contrary to any prescription;
(c) Illicit drugs.
6.
The father is hereby restrained from causing [X] to live or stay overnight on the father’s yacht unless specifically agreed in writing between the parties.
7.
Subject to the father agreeing to move to New Zealand, the mother shall pay to the father the sum of $20,000.00 (‘the payment’) to assist the father with his relocation costs.
8.
The payment shall be made as follows:
(a) $10,000.00 upon the father providing to the mother a copy of his resignation from E Employer and his proposed travel itinerary to New Zealand; and
(b) $10,000.00 upon the father notifying the mother of his arrival in New Zealand.
9.
Neither party shall criticise or denigrate the party or the other party’s family in the presence of [X], or allow [X] to remain where any third party does so.
10.
In the event the father has not, within 30 days of the date of his arrival in New Zealand, obtained accommodation and/or employment, the father shall do all acts and things to engage with a clinical psychologist.
11.
If the father engages with the psychologist, the father shall follow all reasonable directions of the psychologist in respect of his therapy and treatment.
12.
Within seven days of the father engaging with the psychologist, the father shall notify the mother of the name of the psychologist and keep the mother informed of all appointments made with the psychologist.
13.
Prior to [X] attending full-time school, the parties attend a community-based mediation organisation in New Zealand to r[X]w the arrangements for the father to spend time with [X].
Spend time with arrangements – if the father moves to New Zealand and has obtained accommodation
14.
[X] shall spend time with the Respondent father as follows:
(a) From Friday 15 February 2019 through to 23 May 2020:
(i) Each Tuesday from 3:00 p.m. until 8:00 a.m. Wednesday.
(ii) Each alternate weekend from 5:00 p.m. Friday until 5:00 p.m. Sunday;
(iii) Such other times as agreed in writing.
(b) After 23 May 2020:
(i) Each Tuesday from 3:00 p.m. to 8:00 a.m. Wednesday.
(ii) Each alternate weekend from 5:00 p.m. on Friday until 9.00 a.m. if a school day and 5:00 p.m. if not a school day on Monday, or such other additional night as agreed;
(iii) Such other times as agreed in writing.
15.
That the provisions of order 14 shall be suspended during the period 24 December to 27 December in each year and the following provisions shall apply;
(a) [X] shall spend time with the father as follows:
i. In 2019 and in each alternate year thereafter – from 11:30 a.m. Christmas Day until 11:30 a.m. Boxing Day;
ii. In 2020 and each alternate year thereafter from 11:30 a.m. Christmas Eve until 11:30 a.m. Christmas Day.
(b) [X] shall spend time with the mother as follows:
i. In 2019 and in each alternate year thereafter from 11:30 a.m. Christmas Eve until 11:30 a.m. Christmas Day;
ii. In 2020 and in each alternate year thereafter from 11:30 a.m. Christmas Day until 11.30 a.m. Boxing Day.
16.
That the provisions of order 14 shall be suspended during the period Good Friday to Easter Monday and [X] shall spend time with the father as follows:
i. From 2019 and in each alternate year thereafter from 9:00 a.m. Easter Sunday until 5:00 p.m. Easter Monday;
ii. From 2020 and in each alternate year thereafter from 9:00 a.m. Good Friday until 5:00 p.m. Easter Saturday;
iii. Such other times as agreed in writing.
17.
[X] shall spend time with the father on her birthday at such times to be agreed and failing agreement from 3:30 p.m. to 5:30 p.m.
18.
[X] shall spend time with the mother on Mother’s Day and time with the father on Father’s Day at such times as agreed in writing.
Spend time with arrangements – if the father moves to New Zealand and has not obtained accommodation
19.
Until the father obtains accommodation in New Zealand, [X] shall spend time with him:
(a) from 9:00 a.m. to 5:00 p.m. on four days per fortnight, such days to be agreed, and failing agreement, on each Tuesday and each alternate Saturday and Sunday; and
(b) Such other times as agreed in writing.
Spend time with arrangements until [X] attends full time school– if the father does not move to New Zealand
20.
In the event that the father does not relocate to New Zealand, [X] spend time with him as follows:
(a) During 2019 to 23 May 2020:
(i) For 8 overnights, twice per year in New Zealand as follows:
i. For four overnights, starting at 9:00 a.m. on Day 1, until 4:00 p.m. on Day 5;
ii. For four overnights, starting at 9:00 a.m. on Day 6 until 4:00 p.m. on Day 10.
iii. Such other times as agreed in writing.
(b) After 23 May 2020:
(i) Time shall occur as set out in order 20(a)(i)i-iii, but shall increase to two lots of five overnights.
21.
The mother shall be responsible for the father’s costs of travel to New Zealand twice per annum.
22.
The mother’s liability for the costs of the father’s travel twice per annum is capped at $1,968.00 per trip and is comprised of airfares, accommodation and car hire.
23.
The father will provide to the mother two months’ notice for his intended dates of travel to New Zealand and in the event that the father does not provide notice in accordance with this order, the father shall be solely responsible for his costs of travel.
24.
The father may elect to spend his time with [X] in accordance with Order 20 in Tasmania, not more than once per annum, on condition that he give the mother three months’ notice and the mother shall at her cost accompany [X] for all travel and remain in Tasmania to facilitate the time AND IT IS NOTED that the mother will not pay the father’s expenses for these periods.
25.
The father shall be at liberty to spend time with [X] in New Zealand on more occasions than twice per year, with him to give the mother no less than 30 days’ notice of his intention to travel to New Zealand. Such travel to be at his sole cost.
26.
Such time that the father elects to spend with [X] in New Zealand shall be in accordance with order 20, unless otherwise agreed in writing.
27.
[X] shall communicate with the father as follows:
(a) By telephone, FaceTime or Skype three times per week on a day and time to be agreed between the parties; and
(b) By telephone, FaceTime or Skype on special days such as Christmas and Birthdays.
28.
The mother send the father one or two videos of [X] on a weekly basis.
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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