LEVAN & HUXLEY - [2020] FamCA 704

FAMILY COURT OF AUSTRALIA

LEVAN & HUXLEY

[2020] FamCA 704

FAMILY LAW – CHILDREN – international relocation – where the mother seeks to relocate with the child to her country of birth, New Zealand – where the father opposes the application – where it is uncertain the mother’s level of distress in not being permitted to relocate with the child will affect her capacity to parent the child – where the Court finds, on balance, such an outcome is a possibility but not a probability – relocation of the child not permitted.

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

A & A: Relocation Approach (2000) FLC 93-035
Lansa & Clovelly [2010] FamCA 80
U v U (2002) 29 Fam LR 74
CDJ v VAJ (1998) 197 CLR 172
Re G: Children’s Schooling (2000) FLC 93-025

APPLICANT:

Ms Levan

RESPONDENT:

Mr Huxley

FILE NUMBER:

BRC

4976

2018

DATE DELIVERED:

28 August 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

10 & 11 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms S Downes

SOLICITOR FOR THE APPLICANT:

BGM Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr G Shoebridge

SOLICITOR FOR THE RESPONDENT:

Advance Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms R Lyons

INDEPENDENT CHILDREN’S LAWYER:

Ms A Smerdon
Legal Aid Queensland

Orders

That the application of the mother to relocate the child, X born … 2015 (“the child”) to New Zealand is dismissed.

Parental responsibility

That except as otherwise stated, the father Mr Huxley (“the father”) and the mother Ms Levan (“the mother”) (collectively “the parents”) are to have equal shared parental responsibility for the major long term issues of the child.
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibilities as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 3 herein:
(a)the mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and
(b)the father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.

Living arrangements

That the child shall live with the mother and spend time with the father at all times that may be agreed in writing, and failing agreement:
(a)in a two (2) week cycle as follows, up until January 2021:
(i)In week one (1), commencing the first week after the making of these Orders from 4.00pm Thursday until 4.00pm Sunday and each alternate week thereafter;
(ii)In week two (2), commencing the second week after the making of these Orders from 4.00pm Thursday to 4.00pm Friday and each alternate week thereafter.
(b)commencing in January 2021 from afterschool or 3.00pm Wednesday to…

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 LEVAN & HUXLEY

Details

AGLC: LEVAN & HUXLEY [2020] FamCA 704
Case: [2020] FamCA 704
Decision Date: 28 August 2020

CaseChat Overview and Summary

This case concerned an application by the mother, Ms Levan, for permission to relocate the child, X, born in 2015, to New Zealand. The father, Mr Huxley, opposed this application. The matter came before Baumann J of the Family Court of Australia.

The primary legal issue before the court was whether the mother's proposed relocation of the child to New Zealand was in the child's best interests. This required the court to consider the principles of parental responsibility, living arrangements, and the practicalities of shared parenting in the context of an international relocation.

Baumann J dismissed the mother's application to relocate the child to New Zealand. The court ordered that the parents share equal parental responsibility for major long-term issues concerning the child, requiring them to consult and make genuine efforts to reach joint decisions. The mother was to be responsible for the child's daily care when the child was with her, and the father similarly when the child was with him. The court then set out detailed orders regarding the child's living arrangements, including a two-week cycle, arrangements for school holidays, and specific provisions for special occasions. Further orders addressed communication between parents and child, schooling, exchange of information, overseas travel, and the management of the child's passports. The court also included provisions for the signing of necessary documentation and appointed the Registrar to execute documents in the event of a party's default.

Orders

Orders of the court

That the application of the mother to relocate the child, X born … 2015 (“the child”) to New Zealand is dismissed.

Parental responsibility

That except as otherwise stated, the father Mr Huxley (“the father”) and the mother Ms Levan (“the mother”) (collectively “the parents”) are to have equal shared parental responsibility for the major long term issues of the child.

That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibilities as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree; and

That notwithstanding the provisions of Order 3 herein:

(a) the mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and

(b) the father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.

Living arrangements

That the child shall live with the mother and spend time with the father at all times that may be agreed in writing, and failing agreement:

(a) in a two (2) week cycle as follows, up until January 2021:

(i) In week one (1), commencing the first week after the making of these Orders from 4.00pm Thursday until 4.00pm Sunday and each alternate week thereafter;

(ii) In week two (2), commencing the second week after the making of these Orders from 4.00pm Thursday to 4.00pm Friday and each alternate week thereafter.

(b) commencing in January 2021 from afterschool or 3.00pm Wednesday to 9.00am or before school Monday and each alternate week thereafter;

(d) each alternate week during December 2020 and January 2021 (such that the child shall live on a week-about basis with each parent); and

(e) from 9.00am on Christmas Eve until 12 noon on Christmas Day 2020.

That notwithstanding any other order, the child shall be with the mother from 12 noon on Christmas Day until 4.00pm on Boxing Day.

School holidays

That the child spend time with the parents during school holidays at all times that may be agreed in writing, as follows:

(a) For the first half of all school holiday periods with the father and the second half with the mother in 2021 and each alternate year thereafter; and

(b) For the second half of all school holiday periods with the father and the first half with the mother in 2022 and each alternate year thereafter.

That in order to give effect to Order 7:

(a) the time provided for in Order 5(a) and 5(b) shall be suspended and shall recommence at the commencement of the new school term as though the school holidays had not taken place (for example, if the last week of the school term is week one (1), the first week of the school term is week two (2));

(b) school holidays are deemed to commence after school on the last day of the school term and conclude before school on the first day of the school term;

(d) in the event that there is an uneven number of nights in any school holiday period, the father shall have the extra night on the first occasion and each alternate occasion thereafter and the mother shall have the extra night on the second occasion and each alternate occasion thereafter.

That for the calendar years 2021 and 2022, the mother may elect, on at least ninety (90) days prior written notice to the father, to increase any period of time when the child is in her care for a total period of four (4) weeks, on the following basis:

(a) The extended total period of four (4) weeks can occur on two occasions each year in 2021 and 2022;

(b) If the extended period occurs during the end of term four (4) school holidays, it shall not extend in a way that, without the father’s consent, prevents the child from spending time with the father at Christmas under Orders 5(e) and 7(a); and

(c) If the block period includes school term time, then the mother shall use her best endeavours (after discussions with the child’s teachers) to encourage continued school work to some degree during that period he is not attending school.

Special occasions

10.

That unless otherwise agreed in writing, the child shall spend time with each of the parents om special days as follows:

(a) With the father on Father’s Day, should the child not already be spending time with the father, from 9.00am until 4.00pm;

(b) With the mother on Mother’s Day, should the child not already be spending time with the mother, from 9.00am until 4.00pm;

(i) if a weekday, from after daycare/school until 6.00pm; and

(ii) if a weekend, from 10.00am until 2.00pm.

(d) On the birthday of each parent, should the child not already be spending time with the parent on the day:

(i) if a weekday, from after daycare/school until 6.00pm; and

(ii) if a weekend, from 10.00am until 4.00pm.

(e) With the father on the birthdays of the child’s siblings (paternal side), on 29 October and 1 February each year, from 9.00am until 4.00pm, if a non- daycare/school day or from after daycare/school until 6.00pm, if a daycare/school day.

Changeovers

11.

That for the purposes of changeover:

(a) the child shall be collected from and returned to his school on school days; and

(b) on non-school days the child shall be collected from and returned to a location in Suburb B.

Communication

12.

That unless otherwise agreed in writing, the child shall have telephone and/or electronic communication with the parents at all times that can be agreed, and failing agreement:

(a) at all reasonable times as requested by the child;

(b) each Tuesday at 6.30pm when the child is not otherwise with the father;

(d) both parents will ensure that the child has privacy during the call and will ensure that the child telephones the parent the following evening in the event of the call being missed.

Schooling

13.

That the child shall be enrolled and shall attend Suburb C State Primary School for the commencement of the 2021 Queensland school year and shall continue to attend that school for his primary education unless otherwise agreed between the parents in writing or ordered by a Court.

Exchange of information

14.

That the mother and the father shall:

(a) keep the other parent informed at all times of their residential address, email address, landline and mobile telephone numbers and update the parents within seven (7) days of any changes to such details;

(b) keep the other parent informed at all times of any other persons living at their residential address, with such information to be provided within seven (7) days of any changes to such details;

(c) keep the other parent informed of the names and addresses of all treating medical or other allied health practitioners who treat the child from time to time, and authorise those practitioners to provide the other parent with all information they are lawfully able to provide about the child; and

(d) inform the other parent, as soon as is reasonably practicable, and by the best means available, of any significant health issue suffered by the child and this Order authorises any treating medical practitioner to release the child’s medical information to the other parent (at the requesting parent’s cost).

15.

That the mother and the father authorise, by this Order, all schools attended by the child from time to time to provide to each of them all information/documentation sought by them in relation to the child’s welfare, progress and activities at school from time to time (including but not limited to providing the mother and/or the father with copies of school newsletters and other notes/letters to parents, copies of the child’s school reports, details of the child’s parent/teacher interviews, copies of order forms for the child’s school photographs and certificates and awards obtained by the child, (at each parent’s own cost)).

16.

That during all those periods when the child is living with the mother and the father in accordance with these Orders, the mother and the father shall each:

(a) respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b) speak of the other parent respectfully; and

(c) not denigrate or insult the other parent in the presence or hearing of the child and shall remove the child from surroundings where other persons may be denigrating or insulting the other parent in the hearing or present of the child.

Overseas travel

17.

That the mother and the father shall each be at liberty to take the child overseas during any of those periods when the child lives with each of them in accordance with these Orders and at such other times as shall be agreed upon between the mother and the father from time to time in writing, on the following conditions:

(a) The travelling parent shall give the other parent as much written notification as possible of their intention to travel and, in any event, shall give the other parent not less than one (1) month’s, written notice of such intention save in the event of an emergency when notice will be provided as soon as is reasonably practicable; and

(b) Should the dates of the travel fall outside the mother’s usual time with the child (such as in the case of a family emergency) pursuant to these Orders, the additional time shall be as agreed between the parents and the father is not to unreasonably refuse the time sought by the mother;

(c) That at least two (2) weeks immediately prior to the departure date, the travelling parent shall provide to the other parent:

(i) an accurate, written itinerary for the trip, including but not limited to departure and return times and dates and the place(s) and country/countries the child will be travelling to and the approximate dates on which the child will arrive and depart each destination;

(ii) a telephone number/numbers and address/addresses at which the child and the travelling parent be contacted during the duration of the child’s holiday; and

(iii) copies of the child’s forward journey and return journey tickets or electronic tickets, (including air tickets).

Passport

18.

That the child’s passports shall be held by the mother and the mother shall do all acts and things as may be necessary so as to ensure that the passport or passports travel with the child.

19.

That the father shall do all acts and things as may be necessary so as to ensure he returns the child’s passport with the child after any overseas travel.

20.

That the mother and the father shall do all acts and things and sign all documents necessary directed to the Australian Passport Office (or such other Department or instrumentality administering the Australian Passports Act 2005) within seven (7) days of receiving that document from the parent requesting the passport to enable the child to be issued with an Australian passport (travel document) and to renew the child’s passports from time to time so as to ensure the child has at all times a current Australian passport.

21.

That in the event that either the mother or the father refuses or neglects to sign any document necessary to issue the child with an Australian passport despite these Orders and having consented to an Australian passport (or travel document) being issued, such refusal will constitute sufficient special circumstances for a parent to seek that the Minister administering the Australian Passports Act 2005, give consideration to issuing an Australian passport (travel document) pursuant to section 11(2)(1) of the Australian Passports Act 2005.

22.

That the mother and the father shall each do all acts and things and sign all deeds, documents, instruments and writings as may be necessary so as to facilitate the child being able to travel, including by signing Australian passport applications and/or Australian passport renewal/extension applications and any other necessary visa/other travel documentation for the child.

23.

That the mother and father shall do all things including by signing all documents within seven days of a request being made by the mother or father to execute a New Zealand Passport application and or renewal for same.

Signing of documentation

24.

That:

(a) each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these Orders within seven (7) days of being requested to do so;

(b) in the event that a party refuses or neglects to sign or execute and return a document within seven (7) days of presentation to them or a lawyer representing them then pursuant to Section 106A of the Family Law Act 1975, the Registrar of the Brisbane Registry of the Family Court of Australia is appointed and empowered and directed hereby to sign or execute the same in the name of that party upon presentation of such document and an affidavit of a lawyer on behalf of the requesting party as to the said neglect or refusal;

(c) the costs of and incidental to such request and production of documents to the Registrar shall be borne by the defaulting party without further order of that Honourable Court and may be taxed or fixed by the Registrar and thereafter shall be recoverable from the defaulting party by the other party as a debt; and

(d) an affidavit by the lawyer acting for the non-defaulting party shall be sufficient proof of the other party’s default.

25.

That the Independent Children’s Lawyer be discharged.

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

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

Full text does not contain this section.