MAGANA & ELZERS

Case [2019] FCCA 3606


FEDERAL CIRCUIT COURT OF AUSTRALIA

MAGANA & ELZERS [2019] FCCA 3606
Catchwords:
FAMILY LAW – Parenting – competing residence applications – 8 year old child – child always been in mother’s primary care – change of residence – parties live approximately 4 hours drive apart – mother’s mental health – parents capacity – unacceptable risk.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60B(1), 60B(2), 60CA, 60CC,

60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 61F, 64, 65D, 65DAA(1),

65DAA(2), 65DAA(3), 67Z

Cases cited:

A v A (1998) FLC 92-800
Amador v Amador (2009) 43 Fam LR 268
B and B (1993) FLC 92-357
Johnson and Page (2007) FLC 93-344
M v M (1988) 166 CLR 69

Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

MRR v GR [2010] HCA 4
N and S and the Separate Representative (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Potter and Potter (2007) FLC 93-326
Stott & Holgar [2017] FamCAFC 152

Waterford & Waterford [2013] FamCA 33

Applicant: MR MAGANA
Respondent: MS ELZERS
File Number: MLC 4893 of 2018
Judgment of: Judge Harland
Hearing dates: 28, 29 and 30 October 2019
Date of Last Submission: 30 October 2019
Delivered at: Melbourne
Delivered on: 12 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Arnold of Counsel
Solicitors for the Applicant: Victoria Legal Aid
Counsel for the Respondent: Ms Wiener of Counsel
Solicitors for the Respondent: Hartleys Lawyers
Counsel for the Independent Children's Lawyer: Ms Bowen of Counsel
Solicitors for the Independent Children's Lawyer: Perisic Lawyers

ORDERS

  1. That all previous parenting orders be discharged.

  2. That the parties have equal shared parental responsibility of X born … 2011 (“X”).

  3. That X live with the father commencing on 12 December 2019.

Mother’s time from judgment delivery to the commencement of term 1 2020

  1. That X spend time and communicate with the mother for the period from judgment delivery until the commencement of term 1 2020 as follows:

    (a)Provided that the mother stays in the City O area:

    (i)From 3pm Christmas Day 2019 until 3pm Boxing Day 2019;

    (ii)From 3pm on 3 January 2020 until 3pm on 4 January 2020; and

    (iii)3pm on 17 January 2020 until 3pm on 19 January 2020.

    With all handovers to take place at the City O Police Station.

Mother’s time if she remains living in Town P

  1. In the event that the mother remains living in Town P:

    (a)On a four week cycle:

    (i)On the first weekend of the cycle from 6pm Friday until 3pm Sunday with such time to occur within one hour travel of City O;

    (ii)On the third weekend of the cycle from 6pm Friday until 3pm Sunday with such time to occur in the Town P area;

    (b)On the child's birthday by telephone or FaceTime at 6.30pm in the event that the mother does not wish to travel to City O or if the mother travels to City O for time from the conclusion of school or 3.30pm until 5.30pm on a school day…

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Details
AGLC
MAGANA & ELZERS [2019] FCCA 3606
Case
[2019] FCCA 3606
Decision Date

CaseChat Overview and Summary

In the matter of MAGANA & ELZERS, Judge Harland of the Federal Circuit Court of Australia considered competing applications for the residence of an eight-year-old child. The dispute arose between the child's parents, with the child having consistently resided with the mother. A significant factor in the proceedings was the geographical distance between the parties, approximately four hours' drive, and concerns raised regarding the mother's mental health and the parents' respective capacities to care for the child, including the potential for unacceptable risk.

The court was required to determine the best interests of the child, specifically whether a change of residence was warranted and, if so, to which parent the child should primarily reside. This involved assessing the capacity of each parent to provide a stable and nurturing environment, considering the impact of the mother's mental health and any identified risks. The court also had to consider the practical implications of the significant geographical separation between the parents and how to facilitate ongoing meaningful involvement of both parents in the child's life.

Judge Harland ordered the discharge of all previous parenting orders and established equal shared parental responsibility for the child. The court determined that the child would live with the father, commencing on 12 December 2019. Detailed provisions were made for the mother's time with the child, contingent on her residential location, either remaining in City O or relocating to Town P, or moving closer to City O. These provisions included specific arrangements for weekends, weekdays, school holidays, birthdays, and communication, with stipulations for handover locations and notification requirements. The orders also mandated compliance with medical recommendations, engagement in a parenting program, and referral for the child to a psychologist, with both parents to be involved in the child's treatment process.

Orders

Orders of the court

1.

That all previous parenting orders be discharged.

2.

That the parties have equal shared parental responsibility of X born … 2011 (“X”).

3.

That X live with the father commencing on 12 December 2019.

Mother’s time from judgment delivery to the commencement of term 1 2020

4.

That X spend time and communicate with the mother for the period from judgment delivery until the commencement of term 1 2020 as follows:

(a) Provided that the mother stays in the City O area:

(i) From 3pm Christmas Day 2019 until 3pm Boxing Day 2019;

(ii) From 3pm on 3 January 2020 until 3pm on 4 January 2020; and

(iii) 3pm on 17 January 2020 until 3pm on 19 January 2020.

With all handovers to take place at the City O Police Station.

Mother’s time if she remains living in Town P

5.

In the event that the mother remains living in Town P:

(a) On a four week cycle:

(i) On the first weekend of the cycle from 6pm Friday until 3pm Sunday with such time to occur within one hour travel of City O;

(ii) On the third weekend of the cycle from 6pm Friday until 3pm Sunday with such time to occur in the Town P area;

(b) On the child's birthday by telephone or FaceTime at 6.30pm in the event that the mother does not wish to travel to City O or if the mother travels to City O for time from the conclusion of school or 3.30pm until 5.30pm on a school day and from 10am until 2pm on a non-school day;

(c) From 3pm Christmas Eve until 3pm Boxing Day in the year 2020 and each alternate year thereafter;

(d) From 3pm Boxing Day until 3pm 28 December in the year 2021 and each alternate year thereafter;

(e) By telephone or FaceTime each Wednesday and each alternate Sunday at 6.30pm;

(f) Such further and other times as agreed between the parties in writing.

Mother’s time if she relocates closer to City O

6.

In the event that the mother relocates closer to City O:

(a) Each alternate weekend from 5pm Friday until the commencement of school Monday or in the event of a non-school day 5pm Monday;

(b) Each Wednesday from the conclusion of school or 3.30pm in the event of a non-school day until 7.30pm;

(c) By telephone or FaceTime each alternate Sunday at 6.30pm;

(d) On the child's birthday from the conclusion of school or 3.30pm until 5.30pm on a school day and from 10am until 2pm on a non-school day;

(e) From 3pm Christmas Eve until 3pm Christmas Day in the year 2020 and each alternate year thereafter;

(f) From 3pm Christmas Day until 3pm Boxing Day in the year 2021 and each alternate year thereafter;

(g) Such further and other times as agreed between the parties in writing.

Mother’s time during school holidays and other special days

7.

That X spend time and communicate with the mother as follows:

(a) For one half of the school term holidays commencing 2020 by agreement and failing agreement from 5pm on the first Friday of the holidays until 5pm on the middle Saturday;

(b) For one half of the long summer school holiday period commencing the 2020/2021 summer school holiday period by agreement and failing agreement on a week about basis from 5pm on the first Friday of the holidays in even numbered years and 5pm on the second Friday of the holidays in odd numbered years;

(c) From 6pm on the Friday immediately prior to Mother's Day until 3pm on Mother's Day;

(d) From 3pm Easter Sunday until 3pm Easter Monday in the year 2020 and each alternate year thereafter;

(e) From 3pm Good Friday until 3pm Easter Sunday in the year 2021 and each alternate year thereafter;

(f) Such further and other times as agreed between the parties in writing.

8.

That in the event that the mother remains residing in the Town P area changeovers take place at the City Q Police Station, unless otherwise agreed between the parents in writing and in the event that the Mother relocates closer to City O that changeover occur at the police station closest to the half way point between the parties unless otherwise agreed in writing.

9.

That each parent comply with all reasonable recommendations of the child's treating medical practitioners including in relation to referrals and appointments.

10.

That each parent be authorised to obtain, at their own expense if any, copies of all school reports, newsletters, notices and photograph order forms from any school that X may attend from time to time and the parents each be at liberty to attend any school functions or events normally attended by parents, including but not limited to separate parent/teacher interviews.

11.

That in the event that the child is spending overnight time with the mother, then the mother notify the father in the event that she is unable to care for the child overnight and offer the father first right of refusal.

12.

That each parent be authorised to obtain information in relation to X's health and wellbeing from any treating medical practitioners and allied health professionals that X attends upon.

13.

That each parent notify the other of any serious illness or injury to X whilst in their care and provide details of any treatment received together with the name and address of the treatment provider and location at which X is a patient.

14.

That the parties be at liberty to provide a copy of the Family Report by Ms A dated 31 August 2019 to the following organisations:

(a) The Department of Health and Human Services, Child Protection;

(b) C Aboriginal Healing Service;

(c) Anglicare;

(d) Centacare City O, Parenting Orders Program; and

(e) EACH Suburb S, Parenting Orders Program.

15.

That the parents engage in and complete a Parenting Orders Program and comply with reasonable recommendations of the Parenting Orders Program including in relation to referrals to services assessed as needed by the Program.

16.

That the parents do all such acts and things necessary to obtain a referral for X to attend upon a registered Child Psychologist for generalised counselling and do all such acts and things necessary to facilitate X's attendance upon said Child Psychologist, with both parents to be included in the referral and treatment process.

17.

That the parties be at liberty to provide X’s Child Psychologist with a copy of the Family Report by Ms A dated 31 August 2019.

18.

That the mother be restrained from engaging X with any additional support services without the prior agreement of the father.

19.

That each parent notify the other of their residential address and contact telephone number and notify the other within 24 hours of any change to same.

20.

That each parent ensure that they are both listed as a Parent on the child's school enrolment forms.

21.

That the mother provide the father with the address of any place she intends to stay with X 24 hours prior to the visit.

22.

That the appointment of the Independent Children's Lawyer be discharged at the expiry of 30 days or the expiry of the appeal period.

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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