LONDON & LONDON - [2019] FCCA 2948

FEDERAL CIRCUIT COURT OF AUSTRALIA

LONDON & LONDON

[2019] FCCA 2948

Catchwords:
FAMILY LAW – Parenting – relocation.

Legislation:

Family Law Act 1975 (Cth), ss.60B. 60CA, 60CC, 61 DA, 65DAA

Cases cited:

Paskandy & Paskandy [1999] FLC 92-878
Taylor & Barker [2007] FLC 93-345

MRR & GRR [2010] 240 CLR 461
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
McCall & Clark [2009] FamCAFC 92
Champness & Hanson [2009] FamCAFC 96

Applicant:

MR LONDON

Respondent:

MS LONDON

File Number:

AYC 49 of 2019

Judgment of:

Judge McGuire

Hearing dates:

17 & 18 September 2019

Date of Last Submission:

18 September 2019

Delivered at:

Launceston

Delivered on:

23 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms Southey

Solicitors for the Applicant:

Belbridge Hague

Counsel for the Respondent:

Ms Dart

Solicitors for the Respondent:

Tarella Law

ORDERS

That the parents have equal shared parental responsibility for the child [X] born … 2012 (“[X]”).
That [X] live with the mother.
That [X] spend time and communicate with the father as follows:
(a)during school terms each second weekend between Friday at the conclusion of school or 3.00 p.m. if not a school day until the Monday at the commencement at school or until 5.00 p.m. if not a school day;
(b)on each Wednesday from the conclusion of school or 3.00 p.m. if not a school day until Thursday morning at the commencement of school or 9.00 a.m. if not a school day;
(c)during each term school holiday from the second Monday at 5.00 p.m. until the following Monday at the commencement at school or 9.00 a.m. if not a school day;
(d)in the summer school holidays in 2019/2020 and in each alternate year thereafter for:
(i)weeks 3, 4 and 7 of such holidays with the week being from Friday at 5.00 p.m. until the following Friday at 5.00 p.m.;
(e)in the summer school holidays in 2020/2021 and in each alternate year thereafter for:
(i)weeks 1, 2 and 5 of such holidays with the week being from Friday at 5.00 p.m. until Friday at 5.00 p.m.; and
(f)At such other times and variations of the above as may be agreed between the parties from time to time in writing.
That in any event [X] have reasonable telephone communication with the parent other than the parent with whom she is living with from time to time.
That for the purposes of these orders, weekend and Wednesday time for [X] with the father be suspended during all school holidays.

IT IS NOTED that publication of this judgment under the pseudonym London & London is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

AYC 49 of 2019

MR LONDON

Applicant

And

MS LONDON

Respondent

REASONS FOR JUDGMENT

Applications

These are proceedings in respect of the parties’ only child, [X] born … 2012, (“[X]”) aged 7 years.
[X] currently lives primarily with her mother in Town A and spends time with her father each second…

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.

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Details

AGLC: London and London [2019] FCCA 2948
Case: [2019] FCCA 2948
Decision Date: 23 October 2019

CaseChat Overview and Summary

The Family Court of Australia considered an application concerning parenting arrangements for a child, [X], born in 2012. The dispute centred on the mother's proposed relocation with the child.

The primary legal issue before Judge McGuire was whether to grant the mother's application to relocate with [X] and, consequently, to vary the existing parenting orders. This required the court to consider the best interests of the child, a paramount consideration in family law matters, and to assess the impact of the proposed relocation on the child's relationship with both parents.

In determining the matter, the court applied the principles of the *Family Law Act 1975* (Cth), particularly those relating to equal shared parental responsibility and the best interests of the child. The court made orders reflecting a determination that the parents would continue to have equal shared parental responsibility for [X]. The child was ordered to live with the mother, with specific provisions for the child to spend time and communicate with the father. These provisions included a detailed schedule for weekend and mid-week time during school terms, as well as arrangements for school holidays, including alternating patterns for summer holidays. The court also stipulated that the child would have reasonable telephone communication with the non-resident parent and suspended the father's weekend and Wednesday time during all school holidays.

Orders

Orders of the court

That the parents have equal shared parental responsibility for the child [X] born … 2012 (“[X]”).

That [X] live with the mother.

That [X] spend time and communicate with the father as follows:

(a) during school terms each second weekend between Friday at the conclusion of school or 3.00 p.m. if not a school day until the Monday at the commencement at school or until 5.00 p.m. if not a school day;

(b) on each Wednesday from the conclusion of school or 3.00 p.m. if not a school day until Thursday morning at the commencement of school or 9.00 a.m. if not a school day;

(c) during each term school holiday from the second Monday at 5.00 p.m. until the following Monday at the commencement at school or 9.00 a.m. if not a school day;

(d) in the summer school holidays in 2019/2020 and in each alternate year thereafter for:

(i) weeks 3, 4 and 7 of such holidays with the week being from Friday at 5.00 p.m. until the following Friday at 5.00 p.m.;

(e) in the summer school holidays in 2020/2021 and in each alternate year thereafter for:

(i) weeks 1, 2 and 5 of such holidays with the week being from Friday at 5.00 p.m. until Friday at 5.00 p.m.; and

(f) At such other times and variations of the above as may be agreed between the parties from time to time in writing.

That in any event [X] have reasonable telephone communication with the parent other than the parent with whom she is living with from time to time.

That for the purposes of these orders, weekend and Wednesday time for [X] with the father be suspended during all school holidays.

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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