Malcolm and Pantelides - [2013] FamCA 1025

FAMILY COURT OF AUSTRALIA

MALCOLM & PANTELIDES

[2013] FamCA 1025

FAMILY LAW – CHILDREN – Relocation to New Zealand – Where the mother seeks an order permitting her to relocate the child to New Zealand – Where the parties agree to an order of equal shared parental responsibility – Where equal time or significant and substantial time is not reasonably practicable – Where the mother will have greater family support and greater job opportunities in New Zealand – Where the family consultant recommends the court permit the mother to relocate with the child – Where the time currently being spent between the child and the father will not significantly change.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA

Cowley & Mendoza [2010] FamCA 597

APPLICANT:

Ms Malcolm

RESPONDENT:

Mr Pantelides

INDEPENDENT CHILDREN’S LAWYER:

Catherine Mary Bint

FILE NUMBER:

LEC

475

2012

DATE DELIVERED:

20 December 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

30 September & 1 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wright

SOLICITOR FOR THE APPLICANT:

Beesley & Hughes

COUNSEL FOR THE RESPONDENT:

Mr Lawrence

SOLICITOR FOR THE RESPONDENT:

Slattery Thompson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

CM Bint Family Lawyers

Orders

That the mother and the father shall have equal shared parental responsibility for the major long-term issues in relation to the child, L Pantelides (“the child”), born … 2003, as that term “major long-term issues” is defined in s 4 of the Family Law Act 1975.
That in respect of decisions about those major long-term issues in relation to the child, having regard to paragraph 1 of these Orders and the provisions of s65DAC(2) of the Family Law Act 1975:
(a)Each parent shall inform the other parent about the decision proposed to be made;
(b)Each parent shall consult with the other with a view to reaching terms upon which they may agree; and
(c)Each parent shall make a genuine effort to come to a joint decision with the other parent.
That the child shall live with the mother.
That the mother shall be at liberty to relocate the residence of the child to New Zealand on a date after Friday 17 January, 2014.
That the child shall spend time with the father as may be agreed between the mother and the father and, in default of agreement, as follows:-
(a)From no later than 12 midday on Monday 21 December 2013 until 5:00 pm on Tuesday 14 January, 2014;
(b)For the entirety of the New Zealand school holidays at the end of terms 1 and 3 in each year, provided she is back in her mother’s care at least one clear day before the start of school in the next term;
(c)For one half of the mid-year school holidays in each year, provided she is back in her mother’s care at least one clear day before the start of school in the next term;
(d)For 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 Malcolm and Pantelides

Details

AGLC: Malcolm and Pantelides [2013] FamCA 1025
Case: [2013] FamCA 1025
Decision Date

CaseChat Overview and Summary

This case concerned a dispute between Ms Malcolm (the mother) and Mr Pantelides (the father) regarding parenting orders for their ten-year-old child, L. The mother sought permission to relocate with L to New Zealand, while the father opposed this move and proposed a shared care arrangement in Sydney, or alternatively, for the mother to remain in their current location in New South Wales and for L to continue spending school holidays with him in Sydney. The matter was heard in the Family Court of Australia by Forrest J.

The primary legal issues before the court were whether to grant the mother's application for international relocation of the child to New Zealand, and consequently, what parenting orders were in the child's best interests, having regard to the principles and considerations outlined in sections 60B and 60CC of the *Family Law Act 1975* (Cth). The court was required to determine the most appropriate living arrangements and time arrangements between the parents, considering the child's welfare as the paramount consideration.

Forrest J determined that it was in L's best interests to permit the mother to relocate with her to New Zealand. The court reasoned that the mother would have greater family support and improved job opportunities in New Zealand, which would benefit L. The family consultant also recommended that the relocation be permitted. The court noted that the proposed arrangements would not significantly alter the time L currently spent with her father. The court made orders for equal shared parental responsibility, with L to live with the mother and be at liberty to relocate to New Zealand. Specific provisions were made for L to spend time with the father during school holidays and for regular communication between L and the father, including telephone and Skype contact. The father was ordered to be liable for the costs of L's flights between Australia and New Zealand.

Orders