Mattson and Mattson - [2013] FCCA 2004

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATTSON & MATTSON

[2013] FCCA 2004

Catchwords:
FAMILY LAW – Parenting – relocation – father seeks the permission of the Court to relocate the residence of the children back to south-east Queensland from (omitted), Queensland – mother seeking an order from the Court to allow the children to remain living with her in (omitted) – equal time – substantial and significant time.

Legislation:

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

Browne v Dunn (1894) 6 R 67
Ember & Assadi [2013] FamCAFC 107
In the Marriage of LC & TC (1998) 23 Fam LR 75
In the Marriage of PW & AJ Hall (1979) 5 Fam LR 609
MRR v GR [2010] HCA 4

Applicant:

MR MATTSON

Respondent:

MS MATTSON

File Number:

BRC 9476 of 2012

Judgment of:

Judge Howard

Hearing dates:

5 & 6 August 2013

Date of Last Submission:

6 August 2013

Delivered at:

Brisbane

Delivered on:

5 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr Creamer

Solicitors for the Applicant:

Michael Lynch Family Lawyers

Counsel for the Respondent:

Mr Durley

Solicitors for the Respondent:

Frank Jongkind & Co Solicitors

ORDERS

That each party shall provide a copy of a proposed Final Order to each other party by 4:00pm on 11 December 2013.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 16 December 2013.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9476 of 2012

MR MATTSON

Applicant

And

MS MATTSON

Respondent

REASONS FOR JUDGMENT

Background

The Applicant father was born on (omitted) 1977. The Respondent mother was born on (omitted) 1983.
The parents met at a (religion omitted) Church camp at (omitted) in 1997. The parties commenced a relationship in (omitted) 1999. At that stage the mother was about to turn 16 years of age. The parties were married in (omitted), Queensland on (omitted) 2001.
There are three children of the marriage, namely, X born (omitted) 2002, Y born (omitted) 2004 and Z born (omitted) 2007.
The parties separated on a final basis at the end of 2011. There had been an earlier period of separation from approximately September 2010 to February 2011.
The mother lives outside (omitted) with her new partner Mr D. They are care-takers of a property known “(omitted)”, (omitted),…

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 Mattson and Mattson

Details

AGLC: MATTSON & MATTSON [2013] FCCA 2004
Case: [2013] FCCA 2004
Decision Date: 5 December 2013

CaseChat Overview and Summary

In the matter of Mattson and Mattson, heard by Judge Howard, the dispute concerned parenting orders for the parties' children. The court was required to determine the best interests of the children in accordance with the Family Law Act 1975 (Cth).

The court's primary considerations were the benefit to the children of having a meaningful relationship with both parents and the need to protect them from harm. The court was directed to give greater weight to the latter. Additional considerations under section 60CC(3) were also to be taken into account. The court considered evidence from a family report, including the expressed wishes of an 11-year-old child, X. X desired to remain in her current location for primary school, maintain contact with both parents, and live with her mother, citing her mother's consistent presence and her father's work commitments.

The court noted that there would be benefits to the children in maintaining relationships with both parents. While acknowledging some issues raised regarding potential harm, the court focused on the child's stated wishes and her preference to live with her mother. The court also considered the practicalities of schooling and potential relocation, including the possibility of boarding school.

The court made orders requiring the parties to exchange proposed Final Orders by a specified date, attempt to reach an agreement on the wording, and submit it to the Court. If an agreement could not be reached, the matter was to be listed for a mention, with both parties and their legal representatives to attend.

Orders

Orders of the court

That each party shall provide a copy of a proposed Final Order to each other party by 4:00pm on 11 December 2013.

That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 16 December 2013.

That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

Section 60CC sets out how it is that a Court is to determine what is in a child’s best interests. Section 60CC(2) states:-“Primary considerations60CC(2) The primary considerations are:(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).” It is clear from the evidence in this case that there will be benefits to the children in having meaningful relationships with both the mother and the father. As to any issues in relation to s.60CC(2)(b) concerning physical or psychological harm – I have noted some issues in paragraphs 48 and 63 herein. Additional considerations for the Court to take into account when determining the best interests of children are set out in s.60CC(3). X is now 11 years of age. I will include in here all of the relevant paragraphs from the report of Ms V (note her family report is exhibit 5 and is dated 21 April 2013). The paragraphs relating to X and X’s views are as follows:“87. X is 10 years old. When I collected her from her father, he had just brushed her hair into a ponytail. She said that she and her sister had just been plaiting her granddad’s beard. 88. X presented as a much more confident child, appropriate to her age. She has clear recollections of Mum and Dad together. She says that they used to fight constantly and that, even though they got back together, she always thought that they were likely to separate again.89. She said that she gets on well with the Mr D children. The seven of them share three bedrooms together. They can walk or ride to school.90. She was definite in her expression of wishes. She wants to stay in (omitted) for the remainder of her primary school. She doesn't know what will happen when she gets to High School but she wants to be able to see as much of Mum as possible wherever she goes.91. She went on to say that she wants to see as much of Dad as possible too, because she loves him and she misses him very much.92. She said that the main thing for her is living with Mum. Dad was always working and so she didn't see as much of him. Sometimes he worked all night and slept during the day. So she wants to be with Mum because Mum is the one she has always been with.93. She said that (omitted) has a (omitted) High School but it has a bad reputation. Mum works at (omitted) and they are going to open up a Distance Education Centre at the back of the shop. Otherwise Mum has said that they might move to a closer town e.g. (omitted) or (omitted). 94. It seems that the family have also discussed boarding school in (omitted). She would then spend half of the school holidays with Mum and half with Dad.95. The Court might say that she has to live with Dad during High School and, if so, there are plenty of High Schools in Brisbane.”