Marek and Heywood - [2018] FCCA 3035

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAREK & HEYWOOD

[2018] FCCA 3035

Catchwords:
FAMILY LAW – Parenting – where the parties are agreed that the Applicant Mother should be permitted to relocate from the Region 1 to Town A – where the issue in dispute is when that should occur and how the Respondent Father’s time with the children ought to be structured both before and after the relocation.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CA, 64B, 65DA, 65DAC, 65DAE

Cases cited:

Mazorski & Albright [2007] FamCA 520

Tait & Densmore [2007] FamCA 1383

Applicant:

MS MAREK

Respondent:

MR HEYWOOD

File Number:

MLC 7048 of 2014

Judgment of:

Judge Small

Hearing date:

5 February 2018

Date of Last Submission:

5 February 2018

Delivered at:

Melbourne

Delivered on:

29 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

O'Sullivan Johanson Lawyers

Counsel for the Respondent:

Ms Goldsworthy

Solicitors for the Respondent:

Harwood Andrews

ORDERS

All previous parenting Orders in relation to the children [X] born 2004, [Y] born 2006 and [Z] born 2011 (“the children”) are hereby discharged.
The mother shall be permitted to relocate with the children to Town A no earlier than the day after the last day of the 2018 school year.
Until the mother relocates to Town A:
(a)the children shall live with the mother;
(b)the children shall spend time and communicate with the father:
(i)for five nights per fortnight in accordance with the current regime; and
(ii) at other times by agreement between the parties in writing.
Otherwise, there shall be Final Orders by consent in terms of the Minute of Consent Orders provided to the court by email dated 9 March 2018 (“the Minute”).
The lawyers for the Applicant Mother shall engross the Minute and provide a clean, duly certified copy of the same in a Microsoft Word format (“the Copy”) to the Registry of this Court within seven (7) days.
All extant applications are otherwise dismissed and the proceedings are removed from the list of pending cases.

IT IS NOTED that publication of this judgment under the pseudonym Marek & Heywood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7048 of 2014

MS MAREK

Applicant

And

MR HEYWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting dispute between Ms Marek (“Ms Marek” or “the mother”) and Mr Heywood (“Mr Heywood” or “the father”).
The children of the relationship are [X] born 2004 (“[X]”), [Y] born 2006 (“[Y]”) and [Z] born 2011 (“[Z]”) (collectively “the children”).
The children currently live with the mother and have done so for the majority of the time since separation.
The mother seeks orders that the children live with her and spend substantial and significant time with the father. She also seeks an order for her to be permitted to relocate with the children from Town B on the Region 1, Victoria to Town A, near Region 2, Victoria.
The father concedes…

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 Marek and Heywood

Details

AGLC: Marek and Heywood [2018] FCCA 3035
Case: [2018] FCCA 3035
Decision Date: 29 October 2018

CaseChat Overview and Summary

The case of *Marek and Heywood* concerned parenting orders made by Judge Small in the Federal Circuit Court of Australia. The dispute involved the mother's application to relocate with the three children, [X], [Y], and [Z], to Town A, and the father's opposition to this proposal. The court was required to determine the best interests of the children in light of the proposed relocation, considering their views, relationships with both parents and extended family, and the parents' capacity to co-parent.

The court's reasoning focused on the children's expressed views and their relationships with their parents and grandparents. [X] indicated he did not support the relocation due to concerns about spending less time with his father, though he wished to remain with his siblings. [Y] expressed a desire for her mother to be with her family but also voiced concerns about separation from friends and her father, yet had previously expressed a wish to live in Town A. [Z]'s views were not formally known, but she was described as struggling with the parental separation. All children were noted to have close relationships with both parents and both sets of grandparents. The court acknowledged the parents' history of co-operative parenting and their ability to agree on significant matters concerning the children, despite allegations regarding child support payments which could not be resolved due to a lack of tested evidence.

Ultimately, the court discharged all previous parenting orders. It permitted the mother to relocate with the children to Town A after the end of the 2018 school year. Until the relocation, the children were to live with the mother and spend time and communicate with the father according to the existing five-nights-per-fortnight regime, with additional time by written agreement. Final orders were made by consent in terms of a Minute provided to the court, and all other extant applications were dismissed.

Orders

Orders of the court

All previous parenting Orders in relation to the children [X] born 2004, [Y] born 2006 and [Z] born 2011 (“the children”) are hereby discharged.

The mother shall be permitted to relocate with the children to Town A no earlier than the day after the last day of the 2018 school year.

Until the mother relocates to Town A:

(a)the children shall live with the mother;

(b) the children shall spend time and communicate with the father:

(i) for five nights per fortnight in accordance with the current regime; and

(ii) at other times by agreement between the parties in writing.

Otherwise, there shall be Final Orders by consent in terms of the Minute of Consent Orders provided to the court by email dated 9 March 2018 (“the Minute”).

The lawyers for the Applicant Mother shall engross the Minute and provide a clean, duly certified copy of the same in a Microsoft Word format (“the Copy”) to the Registry of this Court within seven (7) days.

All extant applications are otherwise dismissed and the proceedings are removed from the list of pending cases.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Additional considerations are: [X] told Ms L that he did not support his mother’s proposal to relocate to Town A. He was concerned that the relocation would mean he would necessarily spend less time with his father, although he was equally clear that he did not wish to be separated from his siblings. He wanted to spend more frequent periods of time with both parents, although Ms L thought it was more important for him to see both parents displaying a positive attitude to the other parent. [X] is clearly torn between his love for his father and for his mother and siblings, an unenviable position for a young man to be in. [Y] reported feeling somewhat conflicted about her mother’s wish to return to the Region 2 area, telling Ms L “she should be allowed to be with her family”, but at the same time expressing concern about being separated from her friends and her father for long periods of time. However, at the time of the family report interviews [Y] had recently visited the house in which she would live in Town A and expressed a wish to live there. [Z] was not formally interviewed and therefore her views are not known, although both [X] and [Y] described her as struggling with her parents’ separation. All three children are described as having close, appropriately attached and loving relationships with both parents, although, as might be expected of a boy of his age and in his circumstances, [X] was experiencing some tension in his relationship with his mother. The children are also described as having appropriately warm and close relationships with both sets of grandparents - the paternal grandparents in Town D, and the maternal grandparents in the Region 2 area. Ms L was confident that the children’s relationships with their paternal grandparents were solid enough to survive the relocation without significant deleterious effect. The children apparently raised no issues with Ms L about their relationships with their stepparents, and all were said to have appropriate relationships with Mr B and [A]. These parents have co-operatively parented their children both before and, for the most part, after separation. They have historically been able to agree on schools for them, and there have been no major disputes about the children’s health care. Both parents have taken every opportunity to spend time and communicate with the children, this being evidenced by the positive, close and loving relationships observed by Ms L. The parties’ trial Affidavits (those of the mother sworn and filed on 22 December 2017 and on 19 January 2018, and that of the father sworn and filed on 12 January 2018) contain considerable allegation and cross allegation in relation to the father’s payment of child support and other expenses for the children. Clearly, this is a hotly disputed issue between the parties. It is not possible for the court to make a finding of fact in relation to this issue, as neither party gave evidence at trial, which means that none of the evidence was tested.