Lane and Armstrong - [2018] FamCA 424

FAMILY COURT OF AUSTRALIA

LANE & ARMSTRONG

[2018] FamCA 424

FAMILY LAW – CHILDREN – With whom a child lives – International Relocation – Where the father opposes the mother’s wish to relocate with the child to the UK – Where both parties are UK citizens but both have permanent residence status in Australia – Where the mother is the child’s primary attachment figure – Where allegations of family violence were made by both parties – Where there is no need to protect the child against harm caused by the parties – Where there is a risk the mother’s ability to cope will diminish if she is compelled to remain in Australia with the child – Ordered the mother have sole parental responsibility for the child – Ordered the child shall live with the mother and the mother is restrained from establishing the child’s residence in any place outside either Australia or the UK – Ordered that the time spent by the child with the father is dependent on the distance between the respective locations of the parties’ homes

Family Law Act 1975 (Cth) ss 4, 60CC, 61DA, 64B, 65DAA, 65DAC, 68B, 114
Hague Convention on Civil Aspects of International Child Abduction 1980 art 26

AMS v AIF (1999) 199 CLR 160
Hepburn & Noble (2010) FLC 93-438
McCall v Clark (2009) FLC 93-405

APPLICANT:

Ms Lane

RESPONDENT:

Mr Armstrong

FILE NUMBER:

SYC

853

2016

DATE DELIVERED:

13 June 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

14, 15 & 16 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Dart
SOLICITOR FOR THE APPLICANT:	Kyle Family Lawyers

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

Orders

All former orders relating to the child X, born … 2014, (“the child”) are discharged.
The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the child.
The mother shall:
(a)Prior to making any decision in relation to the child pursuant to her authority under Order 2, give the father written notice of any decision that needs to be made, invite his comments about the decision, and take his comments into account; and
(b)After making any such decision, notify the father in writing of the decision she makes and the reasons for it.
The child shall live with the mother.
The mother is restrained from establishing the child’s residence in any place outside either Australia or the UK.
The mother is restrained from establishing the child’s residence in any place outside Australia until she has:
(a)Served on the father documentary proof she has:
(i)Requested a decision from a court of competent jurisdiction in the United Kingdom about recognition of these orders in the United Kingdom pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October…

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 Lane and Armstrong

Details

AGLC: Lane and Armstrong [2018] FamCA 424
Case: [2018] FamCA 424
Decision Date: 13 June 2018

CaseChat Overview and Summary

Austin J made orders concerning the child X, born in 2014, in a dispute between the child's mother and father. The orders discharged all previous orders relating to the child and established new arrangements for parental responsibility, residence, and time spent with each parent.

The court was required to determine the terms of parental responsibility, the child's primary residence, and the specific arrangements for the father's time with the child, including provisions for interstate and international travel. Additionally, the court needed to address the recognition and enforcement of its orders in the United Kingdom and set out conditions for the mother to establish the child's residence outside Australia.

Austin J ordered that the mother have sole parental responsibility for major long-term issues concerning the child, with a requirement to consult the father before making such decisions and to notify him of the final decision and reasons. The child was ordered to live with the mother, who was restrained from establishing the child's residence outside Australia or the UK unless specific conditions were met regarding the recognition and enforceability of the orders in the United Kingdom under the Child Protection Convention. Detailed provisions were made for the child to spend time with the father, varying according to whether the parties resided in Australia or the UK, and including specific arrangements for communication and travel. The court also made orders restraining alcohol consumption by the father during his time with the child, prohibiting denigration of either parent in the child's presence, and requiring the mother to provide school reports to the father.

Orders

Orders of the court

All former orders relating to the child X, born … 2014, (“the child”) are discharged.

The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the child.

The mother shall:

(a) Prior to making any decision in relation to the child pursuant to her authority under Order 2, give the father written notice of any decision that needs to be made, invite his comments about the decision, and take his comments into account; and

(b) After making any such decision, notify the father in writing of the decision she makes and the reasons for it.

The child shall live with the mother.

The mother is restrained from establishing the child’s residence in any place outside either Australia or the UK.

The mother is restrained from establishing the child’s residence in any place outside Australia until she has:

(a) Served on the father documentary proof she has:

(i) Requested a decision from a court of competent jurisdiction in the United Kingdom about recognition of these orders in the United Kingdom pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (“the Child Protection Convention”); and

(ii) Obtained from a court of competent jurisdiction in the United Kingdom a declaration of registration and enforceability of these orders in the United Kingdom pursuant to Article 26 of the Child Protection Convention; and

(b) Filed in this Court an affidavit verifying her compliance with the conditions set out within Order 6(a).

The parties shall take all reasonable steps to ensure the child spends time with the father as follows:

(a) If the mother, child, and father all live in Australia:

(i) During school terms, each alternate weekend from the completion of school, pre-school, or day-care (or 3.30 pm, whichever is the earliest) on Friday until the commencement of school, pre-school, or day-care (or 9.00 am, whichever is the latest) on Monday, commencing on the first Friday of each school term;

(ii) For the first week of the holidays at the end of terms 1, 2, and 3, commencing at 9.00 am on the first day after the last day of school term and concluding at 5.00 pm on the seventh day thereafter; and

(iii) Each year, from 3.00 pm on Christmas Day until 12.00 noon on 10 January.

(b) If the mother, child, and father all live in the UK:

(i) Whilst ever the father lives within 50 kilometres of the mother and child:

(A) During school terms, each alternate weekend from the completion of school, pre-school, or day-care (or 3.30 pm, whichever is the earliest) on Friday until the commencement of school, pre-school, or day-care (or 9.00 am, whichever is the latest) on Monday, commencing on the first Friday of each school term;

(B) For the first week of the each school holiday period (except the UK Summer school holidays), commencing at 9.00 am on the first day after the last day of school term and concluding at 5.00 pm on the seventh day thereafter; and

(C) During the UK Summer school holidays, in alternating weekly rotations, commencing at 9.00 am on the first day after the last day of school term.

(ii) Whilst ever the father lives more than 50 kilometres from, but within 300 kilometres of, the mother and child:

(A) During school terms, each alternate weekend from 5.00 pm on Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term;

(C) During the UK Summer school holidays, in alternating weekly rotations, commencing at 9.00 am on the first day after the last day of school term.

(iii) Whilst ever the father lives more than 300 kilometres from the mother and child:

(A) During school terms, each third weekend from 9.00 am Saturday until 6.00 pm on Sunday, commencing on the first Friday of each school term;

(C) During the UK Summer school holidays, in alternating weekly rotations, commencing at 9.00 am on the first day after the last day of school term.

(i) During the UK Summer school holidays:

(A) In the UK in 2018 and each alternating year thereafter, for three contiguous weeks commencing on the date nominated by the father to the mother in writing, not less than four months in advance (but only 21 days in advance in 2018); and

(B) In Australia in 2019 and each alternate year thereafter, for three contiguous weeks commencing on the date nominated by the father to the mother in writing, not less than four months in advance; and

(ii) In the UK on one other occasion each year for two contiguous weeks (excluding Christmas Day) commencing on the date nominated by the father to the mother in writing, not less than four months in advance.

For the purposes of implementing Order 7(a), the parties shall respectively ensure the child’s:

(a) Collection from school, pre-school, or day-care whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school, pre-school, or day-care during school term;

(b) Return to school, pre-school, or day-care whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school, pre-school, or day-care during school term; and otherwise

For the purpose of implementing Order 7(b), the parties shall respectively ensure the child’s:

10.

For the purpose of implementing Orders 7(c)(i)(A) and 7(c)(ii):

(a) The father shall collect the child from and deliver the child to the mother at the McDonald’s Restaurant which is closest to the mother’s home in the UK; and

(b) For the trips made by the father to the UK pursuant to Order 7(c)(i)(A), the mother shall deposit to the bank account nominated to her by the father in writing the sum of AUD $1,500 not less than 28 days in advance of the father’s collection of the child from her.

11.

For the purpose of implementing Order 7(c)(i)(B), the mother shall deliver the child to and collect the child from the father at the McDonald’s Restaurant which is closest to the father’s home in Australia.

12.

Whilst ever the child spends time with the father pursuant to Orders 7(a) and 7(b), the parties shall take all reasonable steps to ensure the child communicates privately by telephone with:

(a) The father each Wednesday at 6.00 pm, when the child is living with the mother.

(b) The mother each Wednesday at 6.00 pm, when the child is spending time with the father.

13.

Whilst ever the child spends time with the father pursuant to Order 7(c), the parties shall take all reasonable steps to ensure the child communicates privately by audio-visual internet connection with:

(a) The father (when the child is living with the mother) on three occasions each week, on the child’s birthdays, on Father’s Day, and on Christmas Day at times agreed between the parties.

(b) The mother (when the child is spending time with the father) on three occasions each week, on the child’s birthdays, and on Mother’s Day at times agreed between the parties.

14.

The father is restrained from consuming alcohol during any period in which the child spends time with him and also during the period of 12 hours immediately preceding such time.

15.

Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

16.

The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

17.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

18.

The parties and Independent Children’s Lawyer are at liberty to furnish a copy of these orders to:

(a) The Australian Federal Police and any competent authority or officer empowered under the Australian Passports Act 2005 (Cth);

(b) Legal representatives and courts in the United Kingdom for the purpose of recognition, registration and enforcement under legislation of the United Kingdom; and

19.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

20.

Costs are reserved for 28 days.

21.

Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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