Marston and Marston - [2007] FamCA 1362

FAMILY COURT OF AUSTRALIA

MARSTON & MARSTON

[2007] FamCA 1362

FAMILY LAW – CHILDREN – Relocation – Application by mother to relocate with children from Northern Territory to Victoria – Father agrees to proposed relocation but seeks that relocation not occur for two years– Consideration of principles relevant to determination of relocation cases following 2006 amendments to Family Law Act 1975 – In best interests of children for relocation to occur now rather than later – Father intends to relocate in future to be near children also – Upon father relocating, children to spend equal time with each parent

Family Law Act 1975 (Cth)

U & U [2002] FLC 93-112
A & A: Relocation Approach (2000) FLC 93-035
AIF & AMS (1999) FLC 92-852
F & C [2005] FamCA 573
M & K [2007] FMCAfam 26
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
M & S (formerly E) [2006] FamCA 1408
Morgan & Miles [2007] FamCA 1230
Taylor & Barker [2007] FamCA 1246

APPLICANT:

Mr Marston

RESPONDENT:

Mrs Marston

FILE NUMBER:

DNC

162

2007

DATE DELIVERED:

21 November 2007

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

4, 5, 6 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Giacomo

SOLICITOR FOR THE APPLICANT:	Ward Keller
COUNSEL FOR THE RESPONDENT:	Ms Truman

SOLICITOR FOR THE RESPONDENT:

Michael Whelan & Associates

Orders

That the parties have equal shared parental responsibility for the children B born … December 1993 and L born … April 1996.
That the mother be permitted to move with the children to reside in the Geelong area provided that such move does not take place until the conclusion of the final term in the 2007 school year.
That until the end of school term 2007 the existing parenting orders continue.
That upon the children moving to reside in the Geelong area and until the father moves to reside permanently in the Geelong area the children shall live with the mother and spend time with the father as follows:
(i) half of the April and September/October school holidays,
(ii) all of the July school holidays and
(iii)half of the December/January school holidays save and except for the December 07/January 08 school holidays the children spend time with the father for a period of at least two weeks at a time to be negotiated between the parties taking into account the proposed move to the Geelong area.
(iv)If the father is in the Geelong area during term time from Friday after school until Sunday at 6.00 pm provided that:
(a)the father gives the mother at least 14 days written notice of his intention to be in the Geelong area;
(b)the father ensures that the children continue to attend their extra-curricular activities;
(c)such weekend time is not more than five weekends each term.
(v)By telephone and internet; the mother inform the father of the landline telephone number and internet address for the children within 48 hours of connection.
(vi)That the children spend time…

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 Marston and Marston

Details

AGLC: Marston and Marston [2007] FamCA 1362
Case: [2007] FamCA 1362
Decision Date: 21 November 2007

CaseChat Overview and Summary

In *Marston and Marston*, Dawe J considered parenting orders concerning two children, B and L. The dispute involved the mother's proposed relocation with the children to the Geelong area and the father's objections to this move.

The court was required to determine the extent to which the mother should be permitted to relocate with the children, and what parenting arrangements, including time spent with each parent, would be in the children's best interests following such a relocation. The court also had to consider the practicalities of shared parental responsibility and the children's ongoing schooling and extracurricular activities.

Dawe J ordered that the parties have equal shared parental responsibility for the children. The mother was permitted to move with the children to the Geelong area, but only after the conclusion of the final term of the 2007 school year. Existing parenting orders were to continue until the end of that school term. Upon the move to Geelong, the children were to live with the mother and spend time with the father during school holidays and on specified weekends during term time, subject to certain conditions. Further orders detailed the parenting arrangements once the father permanently relocated to the Geelong area, establishing a week-on, week-off shared living arrangement during term time and a 50/50 split of school holidays. Specific provisions were also made for handovers and the sharing of travel costs for the children.

Orders

Orders of the court

That the parties have equal shared parental responsibility for the children B born … December 1993 and L born … April 1996.

That the mother be permitted to move with the children to reside in the Geelong area provided that such move does not take place until the conclusion of the final term in the 2007 school year.

That until the end of school term 2007 the existing parenting orders continue.

That upon the children moving to reside in the Geelong area and until the father moves to reside permanently in the Geelong area the children shall live with the mother and spend time with the father as follows:

(i) half of the April and September/October school holidays,

(ii) all of the July school holidays and

(iii) half of the December/January school holidays save and except for the December 07/January 08 school holidays the children spend time with the father for a period of at least two weeks at a time to be negotiated between the parties taking into account the proposed move to the Geelong area.

(iv) If the father is in the Geelong area during term time from Friday after school until Sunday at 6.00 pm provided that:

(a) the father gives the mother at least 14 days written notice of his intention to be in the Geelong area;

(b) the father ensures that the children continue to attend their extra-curricular activities;

(v) By telephone and internet; the mother inform the father of the landline telephone number and internet address for the children within 48 hours of connection.

(vi) That the children spend time with the father on special occasions as agreed or as ordered by the Court;

That upon the father moving to reside permanently in the Geelong area and residing not more than 20 kilometres from the children’s school or home (or otherwise as agreed between the parties) and commencing the second Friday after the father informs the mother of his address in the Geelong area the children shall live:

(i) with the mother during term time from conclusion of school on Friday until the conclusion of school Friday the following week; and

(ii) during term time with the father the other week;

(iii) during school holidays the children live with the mother half of the school holidays and with the father half of the school holidays.

Any handovers which do not take place at school are to take place with the mother or her authorised agent (being an adult known to the children) delivering the children to the father’s home at the commencement of time residing with him and the father or his authorised agent (being an adult known to the children) returning the children to the mother’s home at the conclusion of the time residing with him.

Until the father moves to reside in the Geelong area the parties are to share the costs of the airfare of the children travelling between Melbourne and Darwin with the mother to deliver the children to and collect from the Melbourne Airport and the father to collect the children from and deliver to the Darwin Airport (or such other arrangements as may be agreed).

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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