Macrae and Macrae - [2017] FCCA 2301

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACRAE & MACRAE

[2017] FCCA 2301

Catchwords:
FAMILY LAW – Competing applications for final parenting orders in respect of children aged 10 & 7 – application by mother to move children’s place of residence from Adelaide to Hobart – application opposed by father – father seeks shared care regime based in Adelaide – mother proposes father spend regular periods of time with children during school holidays and during the school year – both parties capable and loving parents – no issues of family violence, neglect or abuse – both children well-loved children – presumption of equal shared parental responsibility applies – best interests – meaningful level of relationship – consideration of equal time regime in Adelaide – impact on mother – mother has formed relationship with resident of Tasmania – substantial and significant time regime based on children living in Hobart and father living in Adelaide – considered – what is reasonable and practicable – logistical consideration relating to travel – equal time regime if father moves to Hobart – finely balanced case – no obvious or preferred solution.

Legislation:

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

Cases cited:
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461
C & S [1998] FamCA 66
AMS v AIF; AIF v AMS (1999) FLC 92-852
Goode & Goode (2006) FLC 93-286
Morgan & Miles [2007] FamCA 1230
Taylor & Barker [2007] FamCA 1246
U v U (2002) FLC 93,112
Fragomeli & Fragomeli (1993) FLC 92-393
B & B: Family Law Reform Act 1995 (1997) FLC 92-755
D and S V (2003) FLC 93-137
Godfrey v Saunders (2008) FLR 287
Mazorski v Albright (2007) 37 FamLR 518
Astor & Astor [2007] Fam CA 355
Fragomeli & Fragomeli (1993) FLC 92-393

Applicant:

MS MACRAE

Respondent:

MR MACRAE

File Number:

ADC 1314 of 2015

Judgment of:

Judge Brown

Hearing date:

24 April 2017

Date of Last Submission:

24 April 2017

Delivered at:

Adelaide

Delivered on:

22 September 2017

REPRESENTATION

Counsel for the Applicant:

Ms Tinning

Solicitors for the Applicant:

Norman Waterhouse Lawyers

Counsel for the Respondent:

Ms Lewis

Solicitors for the Respondent:

Barnes Brinsley Shaw Lawyers

ORDERS

It is ordered:

The parties to these proceedings Ms Macrae (hereinafter referred to as “the mother”) and Mr Macrae (hereinafter referred to as “the father”) have equal shared parental responsibility for the children of the marriage X born (omitted) 2007 and Y born (omitted) 2010 (hereinafter referred to as “the children”).
The mother be at liberty to relocate the children’s place of residence from the State of South Australia to the State of Tasmania on or after (omitted) 2018 provided she informs the father of the children’s proposed date of departure to Tasmania twenty-one (21) days beforehand.
Prior to the mother’s departure with the children pursuant to order (2) hereof, the children live with the parties, subject to the existing orders; as follows:

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 Macrae and Macrae

Details

AGLC: Macrae and Macrae [2017] FCCA 2301
Case: [2017] FCCA 2301
Decision Date: 22 September 2017

CaseChat Overview and Summary

The proceedings concerned the parents, Ms Macrae (the mother) and Mr Macrae (the father), and involved a dispute regarding the future living arrangements for their two children, X and Y. The matter was heard by Judge Brown.

The court was required to determine the terms of parental responsibility and the specific living arrangements for the children, particularly in light of the mother's proposed relocation from South Australia to Tasmania. This included establishing the schedule for the children's time with each parent both before and after the relocation, as well as addressing communication, schooling, and special occasions.

Judge Brown ordered that the parents have equal shared parental responsibility for the children. The mother was granted liberty to relocate the children to Tasmania, provided the father was given 21 days' notice of the departure date. Detailed provisions were made for the children's living arrangements with each parent, both prior to the relocation and thereafter, including specific arrangements for weekends, school holidays, and special occasions. The orders also addressed communication between the children and the father, the children's schooling in Tasmania, and the exchange of information regarding the children's health and education.

Orders

Orders of the court

It is ordered:

The parties to these proceedings Ms Macrae (hereinafter referred to as “the mother”) and Mr Macrae (hereinafter referred to as “the father”) have equal shared parental responsibility for the children of the marriage X born (omitted) 2007 and Y born (omitted) 2010 (hereinafter referred to as “the children”).

The mother be at liberty to relocate the children’s place of residence from the State of South Australia to the State of Tasmania on or after (omitted) 2018 provided she informs the father of the children’s proposed date of departure to Tasmania twenty-one (21) days beforehand.

Prior to the mother’s departure with the children pursuant to order (2) hereof, the children live with the parties, subject to the existing orders; as follows:

(a) With the father:

(i) in week one of each fortnight from the conclusion of school on Thursday until the commencement of school the following Friday;

(ii) in the second week of each fortnight from the conclusion of school Thursday until the commencement of school the following Monday;

(iii) during the September/October 2017 school holiday from 9:00am on Monday of the second week of such school until the commencement of school on the first day of school term following provided subparagraphs (i) and (ii) will recommence in the new school term, as if there were no interruptions by the school holiday period;

(iv) during the Christmas school holiday from the conclusion of school on Thursday 15th December 2017 until 5pm Friday 5th January 2018.

(b) With the mother at all other times.

Upon the mother’s relocation to Tasmania, with the children, the children live with each of the parties as follows:

(a) With the father in the event he elects to remain living in Adelaide:

(i) In 2018 on two weekends, during each school term, the weekends to be agreed between the parties and failing agreement to be the third and sixth weekend of each school term, in Adelaide, with the children’s flight from Tasmania to depart on Friday afternoon and the children’s flight from Adelaide to depart on Sunday afternoon of each such weekend, unless such weekends are long weekends when the weekend will conclude on the Monday public holiday;

(ii) In 2019 on one weekend, during each school term, the weekend to be agreed between the parties and failing agreement to be the fourth weekend of each school term, in Adelaide, with the children’s flight from Tasmania to depart on Friday afternoon and the children’s flight from Adelaide to depart on Sunday afternoon of each such weekend, unless such weekend is a long weekend when the weekend will conclude on the Monday public holiday;

(iii) For the first half of each of the April and September/October school holiday periods unless the parties agree otherwise with the children’s flight to depart from Tasmania on the first Saturday of the school holiday period where possible in morning and with the children’s flight from Adelaide to depart on the middle Sunday of the school holiday period;

(iv) For one half of the July school holiday period at times to be agreed and failing agreement to be the first half with the children’s flight to depart from Tasmania on the first Saturday of the school holiday period where possible in the morning and with the children’s flight from Adelaide to depart on the second Wednesday of the school holiday period;

(v) For one-half of each of the Christmas school holiday periods at times to be agreed and in default of agreement:

A. The second half in the 2018/2019 Christmas school holidays concluding on the last Sunday of the school holidays; and

B. For the first half in the 2019/2020 Christmas school holidays commencing on the first Saturday of the school holidays;

(vi) On any other weekend specified by the father to the mother during which he envisages he will be in Tasmania, provided such visits only take place at the father’s sole expense.

(vii) At any other times as may be agreed be the parties from time to time.

(b) With the mother at all other times.

In the event the father elects to relocate to live permanently in Tasmania, the children live with each of the parties as follows:

(a) With the father:

(i) For the balance of any school term in which the father relocates (and in the event that he relocate after week 7 of any term, then for the balance of that term and all of the following term:

A. In week one from the conclusion of school Thursday until the commencement of school Monday;

B. In week two from the conclusion of school Thursday until the commencement of school Friday;

(ii) Thereafter for the next two school terms:

A. In week one from the conclusion of school Wednesday until the commencement of school Monday;

B. In week two from the conclusion of school Thursday until the commencement of school Friday;

(iii) Thereafter during school terms on a week-about basis with handovers to occur at the conclusion of school each Friday;

(iv) For one-half of the April and September/October school holiday periods;

(v) For one half of the July school holiday period save and except that it in the event the father elects to travel with the children to Adelaide during said school holiday period for more than five days, then such visit be extended such that it conclude at 5:00pm on the Thursday of the second week of the school holidays;

(vi) During each of the Christmas school holidays in accordance with paragraph 4(e)(A) &(B) hereof.

(b) With the mother at all other times.

That notwithstanding any other provisions of these orders, the children spend the following special occasions with the parties as follows:

(a) On Father’s Day with the father between 10am and 5pm;

(b) On Mother’s Day with the mother between 10am and 5pm;

(c) On each of the children’s birthdays, with the parent in whose care the children will not otherwise be on that date, for a period of two hours on a school day and a period of three hours on a non-school day at times to be agreed between the parties;

(d) At Christmas:

(i) With the mother, from 12 noon 24 December until 3pm 25 December in 2018 and each alternate year thereafter and from 3pm 25 December until 5pm 26 December in 2019 and each alternate year thereafter;

(ii) With the father from 3pm 25 December until 5pm 26 December in 2018 and each alternate year thereafter and from 12 noon 24 December until 3pm 25 December in 2019 and each alternate year thereafter

That for the purpose of the children’s airflight to Adelaide and return to Tasmania to give to the orders in the event that the father remains living in Adelaide so that the children may live with the father both during school terms and during school holidays as specified by these orders:

(a) That the mother do cause the children to travel as unaccompanied minors and to meet the entire costs of the children’s air travel and any additional fee associated with their travel as accompanied minors.

That until such time and as the father may elect to relocate to Tasmania, the children communicate with the father each week by Skype, other electronic means including telephone at times to be agreed between the parties.

That the mother consult with the father as to the appropriate school for the children to attend in Hobart and in the event that the parties are unable to agree, the mother be authorised to enrol the children at (omitted) Primary School for the balance of their education up to and including Year 10 and thereafter at (omitted) School for the balance of their secondary school education.

10.

That both the mother and father be at liberty to obtain direct from any school at which the children may attend from time to time the following:

(a) School reports, merit cards and any material pertaining to the children but not limited to academic progress and extracurricular activities;

(b) School photographs provided any party meet the expense of same;

(c) All material relating in relation to the child publish by the school including but not limited to parent-teacher notices, school newsletters and the like.

11.

That each parent is at liberty to attend all school functions and activities including parent-teacher nights, sports day, school concerts, excursions, classroom activities and any other festivities, activities or events to which parents are normally invited to participate and attend.

12.

That the mother and father do:

(a) Keep the other informed at all times as to their residential address, contact mobile and landline telephone numbers and email contact address;

(b) Keep the other informed as to any illness or accidents suffered by the said children and do authorise the other to consult with and obtain advice from the said children’s medical or other treating practitioners including any allied health practitioners;

(c) Forthwith advise the other in the event of any sudden illness or accident suffered by any of the said children which requires them to be hospitalised or receive other emergency medical treatment and in such circumstances each parent permits the other to attend at or be in contact with any hospital or other facility at which any of the said children have been so admitted or treated and in order to either visit the said children or receive information as to their diagnosis, prognosis and treatment.

13.

All applications be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

After making these general evidentiary comments, I will now turn to the evidence of each of the witnesses concerned in greater detail. However, it is also necessary for me to point out the individuals who were not called to give evidence. Most significantly these persons include each set of grandparents. I accept, in general terms, that no adverse conclusions can be drawn from their collective absence. I also accept that, on both their paternal and maternal aspects, the children enjoy a close and loving relationship with their grandparents.a)The mother’s evidence The mother was born on (omitted) 1980 in (omitted), a country town located a relatively short distance from Hobart. In 1990, she moved to (country omitted), with her family so that her father could pursue an employment opportunity there. He is an (occupation omitted), who works in the area of (employment omitted), particularly in remote areas. In 1993, the mother returned to Hobart where she attended boarding school. In 1994, she and her family moved to (omitted), where she boarded once again, whilst her parents pursued careers in remote areas of northern Queensland and (country omitted). She spent two years, as a student at her boarding school in (omitted). In 1996, the mother and her mother returned to live in Hobart, whilst her father continued to work in (country omitted). In the late 1990s, the mother was an exchange student, in (country omitted) for approximately one year. She completed her final year of school in 1999 and commenced her employment with (employer omitted) the following year. She has remained in the firm’s employment ever since. Ms Macrae’s father obtained employment on (omitted). As a consequence, Ms Macrae’s parents returned to live in Queensland. The mother herself moved to Brisbane, so she could be nearer to her parents. As previously indicated, it was in Brisbane that she met Mr Macrae. After X’s birth, Ms Macrae’s parents moved to (omitted) to be closer to the family. Accordingly, it is clear that Ms Macrae has had something of a peripatetic childhood and early adulthood, which has involved her adapting to two boarding schools; living as an exchange student overseas; and moving with her parents. It also is clear that she is a well-regarded and longstanding employee of (employer omitted). I also accept that Ms Macrae has a close and mutually supportive relationship with her parents. The parties met in Brisbane in mid-2002. The family lived in Brisbane between that date and 2011, when Mr Macrae lost his employment in Brisbane. This was the catalyst for the family’s move from Brisbane to Adelaide. Given their high regard for Ms Macrae, (employer omitted) were prepared to create a position for her in its Adelaide office. Ms Macrae is a (occupation omitted) at the firm. Prior to the family’s departure from Brisbane, it is Ms Macrae’s case that both her parents were closely involved in X and Y’s care, particularly at times of family crisis, one of which occurred when X was seriously ill. When X was five and a half years of age, he flew unaccompanied to Brisbane to spend Christmas with Ms Macrae’s parents. I accept that both children have a close relationship with their maternal grandparents but, in my assessment, the children’s most significant relationships are with their parents and with one another.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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