MALBURG & WHITLOCK - [2019] FCCA 2763

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALBURG & WHITLOCK

[2019] FCCA 2763

Catchwords:
FAMILY LAW – Parenting arrangements – interim or interlocutory hearing – whereby the mother has relocated from Hobart to Launceston – whereby the father has interfered in the mother’s ability to spend time and communicate with the child – relocation jurisprudence – reasons for moving – importance of child maintaining important and significant relationships – whereby past care arrangements are relevant and significant but are not determinative of the issue – child’s best interests.

Legislation:

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

Cases cited:

Goode & Goode [2006] FamCA 1346
Marvel & Marvel (No.2) [2010] FamCAFC 101
AMS & AIF (1999) FLC 92-852

Cowling & Cowling [1998] FamCA 19
Griffiths & Griffiths (1981) FLC 91-064
Cilento & Cilento (1980) FLC 90-847
Rainer & Rainer (1982) FLC 91-239

Mazorski & Albright [2007] FamCA 520

Burton & Churchin & Anor [2013] FamCAFC 180
Harrison & Woollard (1995) FLC 92-598
Re R Children’s Wishes [2000] FamCA 43
Archbold & Archbold (1984) FLC 91-532
Aldridge & Keaton (2009) 42 Fam LR 369
U & U [2002] FLC 93-112

MRR & GR [2010] HCA 4

Applicant:

MR MALBURG

Respondent:

MS WHITLOCK

File Number:

HBC 264 of 2019

Judgment of:

Judge Harman

Hearing date:

1 May 2019

Date of Last Submission:

1 May 2019

Delivered at:

Hobart

Delivered on:

1 May 2019

REPRESENTATION

Counsel for the Applicant:

Ms Davies

Solicitors for the Applicant:

Baker Wilson Davies Lawyers

Counsel for the Respondent:

Ms Mooney of Counsel

Solicitors for the Respondent:

Bishops Barristers & Solicitors

ORDERS

All prior hearing orders with respect to the child X born … 2012 be suspended.
X’s parents, Mr Malburg and Ms Whitlock, shall have equal shared parental responsibility for the child.
X shall live with the mother.
X shall spend time with the father:
(a)Each alternate weekend from 5:30pm Friday until 5:30pm Sunday;
(b)One half of each short mid-term school holiday period agreed between the parents, or, failing agreement, from 11:00am on the first Saturday until 5:30pm on the middle Saturday;
(c)One half of each Christmas and New Year school holiday period as agreed between the parents, or, failing agreement, for the forthcoming Christmas school holidays commencing December 2019, from 11:00am Boxing Day until 5:30pm 19 January 2020.
For the purpose of the time spent by X with the father the parties shall meet at the main park at Suburb A at the commencement and conclusion of each period where X shall be exchanged between her parents.
Each parent shall be entitled to telephone or use other electronic means to communicate with X at all reasonable times and with reasonable frequency whilst X is in the care of the other parent.
Notwithstanding the above order with respect to equal shared parental responsibility, the mother shall be at liberty to enrol X at Suburb D Primary School without the consent of the father, but provided that the details of each parent shall be provided to and recorded by…

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.

Keep reading for free

Create a free CaseChat account to read MALBURG & WHITLOCK and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 2763
Decision Date: 1 May 2019

CaseChat Overview and Summary

In *Malburg & Whitlock*, heard by Judge Harman, the dispute concerned parenting arrangements for the child X, born in 2012. The mother had relocated from Hobart to Launceston, and the father was alleged to have interfered with the mother's ability to spend time and communicate with X. The proceedings involved considerations of relocation jurisprudence, the importance of maintaining significant relationships, and the relevance of past care arrangements, all within the overarching principle of the child's best interests.

The court was required to determine the appropriate interim parenting orders, specifically addressing issues of parental responsibility, the child's living arrangements, and the time the child would spend with each parent. Further, the court needed to consider the mother's unilateral decision to enrol X in a school in a new location and the extent to which the father should be involved in that decision. The court also had to address the parties' communication and dispute resolution processes.

The court applied the principles of the *Family Law Act 1975*, particularly concerning the child's best interests and the importance of significant relationships. While acknowledging the relevance of past care arrangements, the court found they were not determinative of the current issue. The court ordered that prior hearing orders be suspended and that the parents have equal shared parental responsibility. X was ordered to live with the mother, with specific time arrangements for the father, including alternate weekends and half of school holidays. The court also made orders for communication between parents and X, and importantly, permitted the mother to enrol X in a specific school without the father's consent, while ensuring both parents were recorded as contacts. The parties were also directed to engage in Family Dispute Resolution and family counselling.

Orders

Orders of the court

All prior hearing orders with respect to the child X born … 2012 be suspended.

X’s parents, Mr Malburg and Ms Whitlock, shall have equal shared parental responsibility for the child.

X shall live with the mother.

X shall spend time with the father:

(a) Each alternate weekend from 5:30pm Friday until 5:30pm Sunday;

(b) One half of each short mid-term school holiday period agreed between the parents, or, failing agreement, from 11:00am on the first Saturday until 5:30pm on the middle Saturday;

(c) One half of each Christmas and New Year school holiday period as agreed between the parents, or, failing agreement, for the forthcoming Christmas school holidays commencing December 2019, from 11:00am Boxing Day until 5:30pm 19 January 2020.

For the purpose of the time spent by X with the father the parties shall meet at the main park at Suburb A at the commencement and conclusion of each period where X shall be exchanged between her parents.

Each parent shall be entitled to telephone or use other electronic means to communicate with X at all reasonable times and with reasonable frequency whilst X is in the care of the other parent.

Notwithstanding the above order with respect to equal shared parental responsibility, the mother shall be at liberty to enrol X at Suburb D Primary School without the consent of the father, but provided that the details of each parent shall be provided to and recorded by the school as both a parent and emergency contact person and so that each parent is able to obtain newsletters, reports or other information from the school and to be advised of and attend functions or events at the school at which parents are invited or encouraged to attend.

Pursuant to section 13C of the Family Law Act 1975 the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Legal Aid Commission Early Intervention Unit for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and, subject to the assessment of suitability, each party shall then attend at such times, dates and places as may be advised to participate in and complete Family Dispute Resolution prior to the next Court event.

Pursuant to section 13C of the Family Law Act 1975, the father shall forthwith and within 7 days contact the intake officer of Relationships Australia Hobart and the mother shall forthwith and within 7 days contact the intake officer of Catholic Care Launceston, for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for family counselling services offered by that organisation and subject to the assessment of suitability each party shall then:

(a) Attend at such times, dates and places as may be advised; and

(b) Pay such fees as may be charged;

to participate in and complete such program.

10.

Adjourn the proceedings for further mention and directions to 30 September 2019 at 9:30am

THE COURT NOTES THAT:

A. The purpose of the adjournment is to enable the parties to participate in Family Dispute Resolution and Family Counselling with a view to improving their communication with each other and seeking to resolve some or all of the issues extant between them.

B. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.