Larsson and Casey - [2016] FamCA 971

FAMILY COURT OF AUSTRALIA

LARSSON & CASEY

[2016] FamCA 971

FAMILY LAW – Parenting – children – interim hearing relocation to Darwin

Family Law Act 1975 ss 60CC, 60I(9)(d), 96

Cowling v Cowling (1998) FLC 92-801
Francis & Bordina [2013] FMCAfam14
Goode and Goode (2006) FLC 92-286
Morgan & Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461
U v U [2002] HCA 36

APPLICANT:

Ms Larsson

RESPONDENT:

Mr Casey

FILE NUMBER:

CAC

1672

2016

DATE DELIVERED:

16 November 2016

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

11 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Hill, Sautelle White Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Byrne, Go To Court Lawyers

Orders

That the requirement for a s 60I certificate be dispensed with.
The applicant mother and the respondent father have equal shared parental responsibility for the children of the relationship, namely B (B), born … 2006, and C (C), born … 2002.
That B lives with the applicant mother.
That C lives with the respondent father.
That the mother is permitted to relocate B’s residence to Darwin.
That B spends time with the respondent father as agreed between the parties. In the absence of agreement B shall spend time with the respondent father as follows:
(a)During the end of first term school holidays (Northern Territory) for the first week that corresponds with the NSW school holidays for C.
(b)During the end of term two school holidays (Northern Territory) for the first week that corresponds with the NSW school holidays for C.
(c)During the end of term three school holidays (Northern Territory) for the first week that corresponds with the NSW school holidays for C.
(d)During the end of year Christmas school holidays (Northern Territory) for the first three weeks that correspond with the NSW school holidays for C in the even years, and the last three weeks that correspond with the NSW school holidays for C in the odd years.
(e)Failing there being any overlap between the NSW and Northern Territory school holidays for the end of term school holidays, then for the first week of the Northern Territory end of term school holidays.
That C spends time with the applicant mother as agreed between the parties. In the absence of an agreement C shall spend time with the applicant mother as follows:
(a)During the end of first term school holidays (New South Wales) for the balance of the school holidays other than the week referred to in 6(a) above;
(b)During the end of second term school holidays (New South Wales) for the balance of the school holidays other than the week referred to in 6(b) above;
(c)During the end of third term school holidays (New South Wales) for the balance of the school holidays other than the week referred to in 6(c) above;
(d)During the end of year Christmas school holidays (NSW) for the balance of the school holidays other than the three week periods referred to in 6(d) above;
(e)In…

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 Larsson and Casey

Details

AGLC: Larsson and Casey [2016] FamCA 971
Case: [2016] FamCA 971
Decision Date: 16 November 2016

CaseChat Overview and Summary

In the matter of *Larsson and Casey*, heard by Gill J, the dispute concerned parenting orders for two children, B and C. The applicant mother sought to relocate B to Darwin, while the respondent father opposed this move. The court was required to determine the best interests of the children in light of the proposed relocation and the existing parental responsibilities.

The central legal issues before the court were whether to dispense with the requirement for a section 60I certificate, whether to grant equal shared parental responsibility, and how to structure the children's living arrangements and time with each parent, particularly in light of the proposed relocation of B to Darwin. The court also had to consider the practicalities of travel arrangements and communication between the parents and children.

Gill J ordered that the requirement for a section 60I certificate be dispensed with. The court made orders for equal shared parental responsibility for both children. B was to live with the mother, and C was to live with the father. Crucially, the mother was permitted to relocate B’s residence to Darwin. The judgment then detailed specific arrangements for B to spend time with the father, and for C to spend time with the mother, including provisions for school holidays and communication methods such as Skype. The mother was ordered to organise and pay for the travel expenses for both children. Further orders addressed the ongoing communication and notification requirements between the parents regarding the children's welfare and schooling.

Orders

Orders of the court

That the requirement for a s 60I certificate be dispensed with.

The applicant mother and the respondent father have equal shared parental responsibility for the children of the relationship, namely B (B), born … 2006, and C (C), born … 2002.

That B lives with the applicant mother.

That C lives with the respondent father.

That the mother is permitted to relocate B’s residence to Darwin.

That B spends time with the respondent father as agreed between the parties. In the absence of agreement B shall spend time with the respondent father as follows:

(a) During the end of first term school holidays (Northern Territory) for the first week that corresponds with the NSW school holidays for C.

(b) During the end of term two school holidays (Northern Territory) for the first week that corresponds with the NSW school holidays for C.

(c) During the end of term three school holidays (Northern Territory) for the first week that corresponds with the NSW school holidays for C.

(d) During the end of year Christmas school holidays (Northern Territory) for the first three weeks that correspond with the NSW school holidays for C in the even years, and the last three weeks that correspond with the NSW school holidays for C in the odd years.

(e) Failing there being any overlap between the NSW and Northern Territory school holidays for the end of term school holidays, then for the first week of the Northern Territory end of term school holidays.

That C spends time with the applicant mother as agreed between the parties. In the absence of an agreement C shall spend time with the applicant mother as follows:

(a) During the end of first term school holidays (New South Wales) for the balance of the school holidays other than the week referred to in 6(a) above;

(b) During the end of second term school holidays (New South Wales) for the balance of the school holidays other than the week referred to in 6(b) above;

(c) During the end of third term school holidays (New South Wales) for the balance of the school holidays other than the week referred to in 6(c) above;

(d) During the end of year Christmas school holidays (NSW) for the balance of the school holidays other than the three week periods referred to in 6(d) above;

(e) In the event that orders 6(e) is operative, then for the first week of the NSW end of term school holidays.

The applicant mother is to organise and pay the travel expenses for B and C as agreed, and failing agreement 100 per cent of the cost of a return economy class travel from Darwin to Sydney four times a year for each.

That except when the respondent father is spending time with B in accordance with Order 6, the applicant mother will facilitate Skype communication between B and the respondent father as agreed, and failing agreement between 5:00pm and 6:00pm each Sunday, Darwin time.

10.

That except when the applicant mother is spending time with C in accordance with Order 7, the respondent father will facilitate Skype communication between C and the applicant mother as agreed, and failing agreement between 5:00pm and 6:00pm each Wednesday, Sydney time.

11.

That each parent keeps the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advises the other parent of any change within seven days of such change.

12.

That in the event of childhood illness or emergency the parent with whom the children are with shall contact the other parent forthwith to inform them of the situation.

13.

That both parents be permitted to liaise directly with the school to receive notices, information, newsletters, reports, school photographs and any other necessary information about the children’s progress.

14.

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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