A v A : Relocation Approach (2000) FLC 93-035 AMS v AIF and AIF v AMS [1999] HCA 26 C & G [2006] FamCA 994 (6 October 2006) Cowling v Cowling (1998) FLC 92-801 Elspeth and Peter (P)HBF150/2003 Goode & Goode [2006] FamCA 1346 P & P [2006] FMCAFam 518 Rice v Asplund (1979) FLC 90-725 U & U (2002) FLC 93-112
Applicant:
M
Respondent:
K
File Number:
BRM4614 of 2005
Judgment of:
Altobelli FM
Hearing date:
22 November 2006
Date of Last Submission:
22 November 2006
Delivered at:
Sydney
Delivered on:
14 February 2007
REPRESENTATION
Counsel for the Applicant:
Mr Taylor
Solicitors for the Applicant:
Jones Mitchell Lawyers
Counsel for the Respondent:
Mr Hodges
Solicitors for the Respondent:
James Noble Family Law
ORDERS MADE ON 25 JANUARY 2007
The father’s application for parenting orders in relation to L born
24 February 2000 is dismissed.
The mother’s application for parenting orders in relation to L as above is dismissed.
That pursuant to s.61DA Family Law Act 1975 the father and the mother have equal shared parental responsibility of the child L.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE
BRM4614 of 2005
M
Applicant
And
K
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns a relocation application relating to L who is a six year old Child. The Child’s father, who is for all practical purposes the applicant in these proceedings, wishes to relocate to Adelaide with L. L’s mother, the respondent in these proceedings, opposes the proposed relocation.
L’s Father K is 34 years old. He is now married to E. She gave evidence, as did her father, and K’s mother. L’s mother, has another child, who was born in August 2005 and who was about 15 months old at the time of the hearing. L’s mother and father started living together in August 1997 and moved to Queensland in early 1999. The parents separated in October 2001. L’s mother was struggling with alcohol addiction and depression from shortly after L’s birth. This continued for several years. Eventually from about January 2004, L came to live with the Father whilst her mother went into rehabilitation. As the mother’s rehabilitation progressed satisfactorily she began to spend more time with L and proceedings were commenced in the Federal Magistrates Court at Brisbane in 2005 to resolve the issue of where L would live on a long term basis.
This matter was first before me in November 2006 when I was sitting in Brisbane. Regrettably the pressure of work has precluded orders being made before January 2007, and the reasons for judgment being provided until this date. The applicant father was represented by his counsel Mr Taylor, and the…
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
M & K [2007] FMCAfam 26
Case
[2007] FMCAfam 26
Decision Date
CaseChat Overview and Summary
This case concerns a relocation application brought by the father of a six-year-old child, L, who wishes to move from the Gold Coast to Adelaide. The mother opposes the relocation. The father applied for parenting orders to permit the relocation and for shared parenting arrangements, while the mother sought to maintain the existing parenting orders and sought to increase her time with L. The court was required to determine whether the relocation application should be granted and, if so, what parenting orders should be made. The court considered the provisions of the Family Law Act 1975, as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006, and relevant case law. The court found that the presumption of equal shared parental responsibility under s.61DA had not been negated or rebutted. The court also found that the relocation would not be in L's best interests, as it would threaten her meaningful relationship with her mother and cause significant disruption to her life. The court dismissed both parties' applications for parenting orders, and declared that the parents have equal shared parental responsibility for L.
The court's reasoning was based on the analysis of the relevant statutory provisions and case law, as well as the evidence presented by both parties. The court emphasised the importance of meaningful relationships and involvement in a child's life, and the need to balance the competing interests of the child, the parents, and society at large. The court concluded that the best interests of the child should take precedence over the freedom of movement of the parents, and that the relocation would not be in L's best interests. The court also noted that the mother's application to vary the existing parenting orders was opportunistic and unfair to the father, and that there were no significant changes in circumstances to warrant such a variation.