MACE & MACE - [2019] FCCA 2969

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACE & MACE

[2019] FCCA 2969

Catchwords:
FAMILY LAW – Interim hearing – parenting – proposed relocation – where the father sought to prevent the mother from altering the children’s place of residence – mother granted leave to relocate children’s place of residence whilst they are in her care.

Legislation:

Family Law Act 1975 (Cth), ss.63C, 60B, 60CA, 60CC, 61DA, 65D, 65DAA 79

Federal Circuit Court Rules 2001, rr.1.06, 4.01

Cases cited:

Goode & Goode (2006) FLC 93–286
Morgan & Miles (2007) 312 FLR 114
MRR & GR [2010] HCA 4
Palmer & Hammer (No.2) [2011] FamCAFC 196
Sayer & Radcliffe & Anor (2012) 48 FAM LR 298
Bondelmonte & Bondelmonte (2017) 259 CLR 662

Applicant:

MR MACE

Respondent:

MS MACE

File Number:

SYC 6319 of 2018

Judgment of:

Judge Morley

Hearing date:

20 September 2019

Date of Last Submission:

20 September 2019

Delivered at:

Sydney

Delivered on:

15 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms Lioumis

Solicitors for the Applicant:

Newnhams Solicitors

Counsel for the Respondent:

Ms Winfield

Solicitors for the Respondent:

Dc Balog & Association

ORDERS

The parties have equal shared parental responsibility for [X], born … 2006 (“[X]”), and [Y], born … 2009 (“[Y]”).
The children live with each of the parents on a week about basis, with changeover during school term occurring at the end of school on Friday.
During the week during school term that the children are in the mother’s care pursuant to these orders, they will spend time with their father from after school Wednesday until 8:30pm.
During the week during school term that the children are in the father’s care pursuant to these orders, they will spend time with their mother from after school Wednesday until 8:30pm.
During school holidays at the end of terms 1, 2 and 3, the children will continue to spend time with their parents in a week about pattern pursuant to order 2 of these orders, unless otherwise agreed between the parties.
During the Christmas school holidays at the end of term 4 of each year, the children are to spend half the holidays with each of their parents, being the first half of the holidays with the father in even numbered years, and the second half of the holidays with the father in odd numbered years, and the first half of the holidays with the mother in odd numbered years, and the second half of the holidays with the mother in even numbered years, unless otherwise agreed between the parties.
The mother has leave to relocate the children’s place of residence whilst they are within her care to any place in the Southern suburbs of the Town A area.
Unless otherwise agreed between the parties in writing, [Y] will continue to attend School B until completion of her primary schooling, and [X] will continue to attend School C, until the completion of her high schooling.
Unless otherwise agreed between the parties, [Y] will attend a high school in 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.

Continue reading MACE & MACE

Details

AGLC: Mace and Mace [2019] FCCA 2969
Case: [2019] FCCA 2969
Decision Date: 15 October 2019

CaseChat Overview and Summary

In the matter of MACE & MACE, Judge Morley considered an interim hearing concerning parenting arrangements for two children, [X] and [Y]. The father sought to prevent the mother from altering the children's place of residence, while the mother sought leave to relocate the children's residence during her periods of care.

The court was required to determine whether to grant the mother leave to relocate the children's place of residence and, by extension, to make interim orders regarding the children's living arrangements, time spent with each parent, and educational provisions. The central issue revolved around the proposed relocation and its impact on the existing shared parental responsibility and time arrangements.

Judge Morley made orders reflecting equal shared parental responsibility and a week-about living arrangement for the children. Crucially, the mother was granted leave to relocate the children's place of residence to any location within the Southern suburbs of the Town A area whilst they were in her care. The orders also stipulated specific arrangements for time spent with each parent during school terms and holidays, and maintained the children's current school attendances with provisions for future high schooling. Further orders included restrictions on denigration of either parent in the children's presence and specified locations for changeovers.

Orders

Orders of the court

The parties have equal shared parental responsibility for [X], born … 2006 (“[X]”), and [Y], born … 2009 (“[Y]”).

The children live with each of the parents on a week about basis, with changeover during school term occurring at the end of school on Friday.

During the week during school term that the children are in the mother’s care pursuant to these orders, they will spend time with their father from after school Wednesday until 8:30pm.

During the week during school term that the children are in the father’s care pursuant to these orders, they will spend time with their mother from after school Wednesday until 8:30pm.

During school holidays at the end of terms 1, 2 and 3, the children will continue to spend time with their parents in a week about pattern pursuant to order 2 of these orders, unless otherwise agreed between the parties.

During the Christmas school holidays at the end of term 4 of each year, the children are to spend half the holidays with each of their parents, being the first half of the holidays with the father in even numbered years, and the second half of the holidays with the father in odd numbered years, and the first half of the holidays with the mother in odd numbered years, and the second half of the holidays with the mother in even numbered years, unless otherwise agreed between the parties.

The mother has leave to relocate the children’s place of residence whilst they are within her care to any place in the Southern suburbs of the Town A area.

Unless otherwise agreed between the parties in writing, [Y] will continue to attend School B until completion of her primary schooling, and [X] will continue to attend School C, until the completion of her high schooling.

Unless otherwise agreed between the parties, [Y] will attend a high school in the general Region D, and not in the Town A area.

10.

All changeovers for the children at start and finish of time with a parent, when not occurring by collection from, or return to school, take place at School B, unless otherwise agreed between the parties.

11.

Without any admissions by either party, each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence of, or within the hearing of the children.

12.

Without any admissions by either party, each of the parents is restrained from allowing the children, or either of them, to remain in the presence of any third party who is denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence of the children, or within the hearing of the children.

13.

Any written submissions in relation to costs by the mother are to be submitted to Chambers by no later than 4:00pm on 14 November 2019.

14.

Any written submissions in reply to the mother’s application for costs to be submitted to Chambers by no later than 4:00pm on 6 December 2019.

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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