FAMILY COURT OF AUSTRALIA
| MALLAHAN & MALLAHAN | [2010] FamCA 631 |
| FAMILY LAW – CHILDREN – RELOCATION – Where the mother seeks to relocate with the children interstate – Where the father proposes a shared care regime that requires the children remain geographically proximate – Consideration of MRR & GR (2010) 263 ALR 368 – Elucidation of the principles to be applied in parenting matters and under s 65DAA FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Presence of parental conflict does not outweigh benefit of parental input for the children – Equal shared parental responsibility ordered FAMILY LAW – CHILDREN – WITH WHOM A CHILD LIVES – Consideration of equal time and substantial and significant time – Where the mother is significantly unhappy remaining in Queensland – Where the expert evidence records and comments on the children’s awareness and concern of the mother’s unhappiness – Orders that the children live with the mother – Order that permits the relocation of the children interstate FAMILY LAW – CHILDREN – WITH WHOM A CHILD SPENDS TIME – Consideration of reasonable practicability in light of interstate relocation – Where the children will benefit from regular, meaningful time with the father – Orders made providing for block time with the father in holidays and long weekends |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CB, 60CC, 61B, 61C, 61D, 61DA, 65AA, 65D, 65DAA, 65DAC, 65DAE, 65DAA |
| AMS v AIF (1999) 199 CLR 160 Cowley & Mendoza [2010] FamCA 597 Chappell and Chappell (2008) FLC 93-382 Eddington and Eddington (No 2) (2007) FLC 93‑349 G v C [2006] FamCA 994 Godfrey v Sanders [2007] FamCA 102 Goode v Goode (2006) FLC 93-286 Marsden and Winch (No. 3) [2007] FamCA 1364 McCall v Clark (2009) FLC 93-405 MRR v GR [2009] HCA Trans 316 MRR v GR (2010) 263 ALR 368 Starr and Duggan [2009] FamCAFC 115 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Mallahan |
| RESPONDENT: | Ms Mallahan |
| FILE NUMBER: | BRC | 4040 | of | 2008 |
| DATE DELIVERED: | 26 July 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 1 February 2010; submissions received 28 April 2010 and 5 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr George |
| SOLICITOR FOR THE APPLICANT: | Reaburn Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Slade-Jones |
| SOLICITOR FOR THE RESPONDENT: | Whitehead Payne |
Orders
Parental Responsibility
The parents shall have equal shared parental responsibility for the children L born … March 2000 and O born … July 2003 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.
Co-Parenting Arrangements as to Time
The children shall live with, spend time with, and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement,…
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- Mallahan & Mallahan [2010] FamCA 631
- Case
- [2010] FamCA 631
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the mother's application for relocation and, consequently, to make orders regarding the children's living arrangements and time spent with each parent. Key legal issues included the application of the principles governing relocation cases, particularly in light of the children's awareness of their mother's unhappiness, and the determination of appropriate parenting orders, including the nature of parental responsibility and the practicalities of shared time in an interstate context.
Murphy J applied the principles established in cases such as *MRR & GR* (2010) 263 ALR 368, considering the best interests of the children. The court found that the mother's significant unhappiness in Queensland, coupled with the children's awareness and concern for her well-being, weighed heavily in favour of permitting the relocation. Despite the presence of parental conflict, the court determined that the benefit of continued parental input from both parents outweighed this conflict, leading to an order for equal shared parental responsibility. The court also considered the concept of "reasonable practicability" in relation to the father's proposed shared care regime, ultimately ordering that the children live with the mother, including upon her relocation to Victoria, while also making detailed provisions for the children to spend significant and meaningful time with the father during school holidays and long weekends.
Orders
Orders of the court
Parental Responsibility
1.
The parents shall have equal shared parental responsibility for the children L born … March 2000 and O born … July 2003 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
2.
The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.
Co-Parenting Arrangements as to Time
3.
The children shall live with, spend time with, and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
4.
The children of the marriage L born … March 2000 and O born … July 2003 live with the mother, including upon her relocation to Victoria.
5.
Upon the relocation of the mother and children to Victoria, the children shall spend time with and communicate with the father as follows:
(a) For the whole of the Easter, June/July and September/October Victorian school holiday periods (save, in respect of Easter school holidays, such time shall not include the periods from Good Friday to Easter Monday inclusive);
(b) For the second half of the Victorian December / January school holidays in 2010 and each alternate year thereafter and the first half of those same holidays in 2011 and each alternate year thereafter;
(c) From after school Thursday until before school Tuesday on each of:
(i) The long weekends incorporating the Victorian Labour Day and Queens Birthday public holidays in each year (in March and June respectively);
(ii) Two other weekends nominated in writing by the father not less than 28 days prior to their occurrence and, not less than 21 days apart.
(d) From after school Friday until before school Monday on any weekend upon which the father is in Victoria having first given the mother not less than 28 days notice in writing of his intention to exercise time on any such weekend.
(e) The father shall be responsible for all air fares associated with the time ordered in the Easter, September/October and December school holiday periods together with the time provided for in sub-paragraphs (c) and (d) of this order.
(f) The mother shall be responsible for all air fares associated with the time ordered in the June/July school holidays.
Communication
6.
Save if time is otherwise being exercised by the farther in accordance with the previous provisions of these orders, the father shall be at liberty to communicate with the children:
(a) By telephone:
(i) Each Tuesday and Thursday between 7pm and 8pm;
(ii) On the children’s birthdays between 7pm and 8pm with the father to initiate the call;
(iii) On Father’s Day and on the Father’s birthday between 7pm and 8pm with the mother to initiate the call.
(b) Via internet, email, Skype® and any such other form of on-line communication as may reasonably be requested by the children at all such times as the children might reasonably request consistent with their daily routines and commitments.
Provision of Information about the Children
7.
Each party shall do all such things and sign all such documents as may be necessary or required to:
(a) Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the children consult, failing which this order shall, of itself, constitute such authority;
(b) To speak to, and receive oral or written communication from, any school or other educational institution attended by the children, failing which this order shall, of itself, constitute such authority;
(c) Keep the other parent appraised of their residential address and telephone contact number;
(d) Notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care.
IT IS FURTHER ORDERED THAT
Dismissal of Other parenting Applications
8.
All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
Other Orders
9.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
10.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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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