Maynard and Bullen - [2008] FMCAfam 1312

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAYNARD & BULLEN

[2008] FMCAfam 1312

FAMILY LAW – Child aged 8 – planned relocation by mother of child from Adelaide to Sunshine Coast – application of presumption of equal shared parental responsibility – father seeks shared care arrangement – necessarily such an arrangement has implications for mother’s plans to move to Sunshine Coast for employment and personal reasons – child’s entitlement to have a meaningful relationship with both parents – freedom of movement – evaluation of parties’ competing proposals – best interests.

Family Law Act 1975, ss.4; 60B; 60CA; 60CC; 61DA; 65D; 65DAA; 65DAC
Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006
McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1

B v B [2006] FamCA 1207
Goode v Goode (2006) FLC 92-286
AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A: Relocation Approach (2000) FLC 93-035
U v U (2002) FLC 93-112
Bolitho & Cohen (2005) FLC 92-224
M & S (2007) FLC 93-313
Fragomeli & Fragomeli (1993) FLC 92-393
B & B: Family Law Reform Act 1995 (1997) FLC 92-755
D & S V (2003) FLC 93-137
Godfrey v Saunders 2008 FLR 287
Morgan & Miles [2007] FamCA 1230
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712

Applicant:

MS MAYNARD

Respondent:

MR BULLEN

File number:

ADC 1297 of 2008

Judgment of:

Brown FM

Hearing dates:

29 & 30 September 2008

Date of last submission:

30 September 2008

Delivered at:

Adelaide

Delivered on:

9 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr D Whittle

Solicitors for the Applicant:

Howe Martin & Associates

Counsel for the Respondent:

Mr Bullen in person

ORDERS

The parties have equal shared parental responsibility for the child [K] born in 2000 (hereinafter referred to as “the child”).
The child live with the mother.
From after 23 January 2009 the mother be permitted to relocate the child’s place of residence permanently to the Sunshine Coast area in the State of Queensland.
The father spend time with the child as follows:
(a)for the first three weeks of the forthcoming December/January South Australian school holidays;
(b)for four weeks of the Queensland December/January school holidays in each year commencing from 2009 onwards so that the four week period does not include Christmas Day in 2009 and each alternate year thereafter but includes Christmas Day in 2010 and each alternate year thereafter;
(c)for one half of each of the April and September/October Queensland school holiday periods from 9:00am on the first day of such school holiday period until 5:00pm on the day of the midpoint of such school holiday period;
(d)For the June/July Queensland school holiday period from 9:00am on the first day of such school holiday period until 5:00pm on the last Sunday of such school holiday period; and
(e)Such further and other times as may be…

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 Maynard and Bullen

Details

AGLC: Maynard and Bullen [2008] FMCAfam 1312
Case: [2008] FMCAfam 1312
Decision Date: 9 December 2008

CaseChat Overview and Summary

The matter of Maynard and Bullen involved a dispute between the parties over parenting arrangements for their child, [K]. The case was heard in the Family Court of Australia, where the primary focus was on determining a parenting plan that would be in the best interest of the child. The mother, Ms Maynard, sought to relocate to Queensland, while the father, Mr Bullen, wished to increase his time with the child.

The legal issues that the court needed to address included the determination of equal shared parental responsibility, the allocation of the child's primary residence, and the establishment of a detailed parenting schedule that would allow for sufficient contact between the child and both parents. The court also needed to consider the implications of the mother's proposed relocation on the child's existing living arrangements and the need for the father to have meaningful contact with the child.

The court recognised the importance of both parents in the child's life, despite the contentious nature of their relationship. It accepted that Mr Bullen had been an active and consistent presence in [K]'s life and had a genuine desire to increase his time with the child. The court found that the proposed parenting arrangements, which included specific visitation schedules and the mother's relocation to Queensland, were in the best interests of the child. The detailed parenting order facilitated the child's continued relationship with both parents, ensuring that the father had sufficient time with the child while accommodating the mother's relocation.

The court ordered that both parents have equal shared parental responsibility for the child. The child would live with the mother in Queensland, with the father having extensive visitation rights during school holidays and additional contact during term time. The mother was directed to pay for the necessary return airfares for the child to facilitate the visitation periods, and both parents were required to facilitate electronic communication between the child and the non-resident parent. The court also outlined specific requirements for communication between the parents regarding the child's health, education, and welfare.

Orders

Orders of the court

The parties have equal shared parental responsibility for the child [K] born in 2000 (hereinafter referred to as “the child”).

The child live with the mother.

From after 23 January 2009 the mother be permitted to relocate the child’s place of residence permanently to the Sunshine Coast area in the State of Queensland.

The father spend time with the child as follows:

(a) for the first three weeks of the forthcoming December/January South Australian school holidays;

(b) for four weeks of the Queensland December/January school holidays in each year commencing from 2009 onwards so that the four week period does not include Christmas Day in 2009 and each alternate year thereafter but includes Christmas Day in 2010 and each alternate year thereafter;

(c) for one half of each of the April and September/October Queensland school holiday periods from 9:00am on the first day of such school holiday period until 5:00pm on the day of the midpoint of such school holiday period;

(d) For the June/July Queensland school holiday period from 9:00am on the first day of such school holiday period until 5:00pm on the last Sunday of such school holiday period; and

(e) Such further and other times as may be agreed between the parties during such Queensland school holiday periods.

The mother be responsible for paying for the child’s necessary return airfares between Brisbane and Adelaide to facilitate the periods of time specified in order 4(a), (b), (c) and (d).

The mother be responsible for booking the child’s necessary airfares for the travel as set out in orders 4(a), (b), (c) and (d) with the mother to advise the father in writing or by email of those arrangements, including details of flight arrival and departure times and flight numbers fourteen (14) days prior to the date of such travel.

In addition to the periods of time specified in order 4(a), (b), (c) and (d) above the child spend one weekend per school term with the father in Adelaide from 5:00pm on Thursday until 5:00pm the following Monday (or Tuesday in the event that Monday is a public holiday in the State of Queensland) provided the father gives fourteen (14) days notice in writing or email of his intention to spend time with the child and is responsible for booking and paying for the child’s cost of return travel between Brisbane and Adelaide.

The father communicate with the child liberally by telephone, email, webcam, skype or other electronic means and both parties shall do all things necessary to facilitate such electronic communication.

The mother authorise the principal of each school attended by the child from time to time to send to the father:

(a) a photocopy of each school report concerning the child;

(b) an order form for each school photograph of the child; and

(c) any other relevant documents pertaining to the child’s school attendance, including academic records, progress cards, school magazines and information related to school related sports activities.

10.

Each party has the right to attend at the child’s school for all events that are routinely attended by parents.

11.

Should a medical emergency arise in relation to the child whilst the child is in the care of either of his parents then the parent concerned shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and address of any treating medical practitioner and the hospital attended by the child and the location of the child.

12.

The father and mother shall have the right to communicate with and obtain any information concerning the child’s physical and mental health and welfare direct from any medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsellor and/or social worker.

13.

The application and response herein be dismissed.

Background

Background to the litigation

However, notwithstanding her many entrenched criticisms of Mr Bullen, Ms Maynard conceded that Mr Bullen was generally a good man and [K] “worships his dad”. I accept that this is so and also that [K] has a deep and secure affection for his mother, who has been his principal provider of care for the vast majority of his life to date.a)Background Ms Maynard was born in 1969. Like Mr Bullen, she has a history of working in the hospitality industry. Currently, she is employed at the [omitted] in Adelaide in a management position. Her income is $36,000 per annum. Mr Bullen was born in 1972. He is employed as a casual [omitted] at the [omitted]. Currently, he works between 15 and 35 hours per week but generally around 20 hours. Ms T is engaged in full time employment. Accordingly, Mr Bullen devotes much of his time to providing care for [L]. For the year ending 30 June 2008, Mr Bullen’s taxable income was just under $34,000. This was down on his income for the previous financial year, which was $45,760. It is his position that Ms T is the main breadwinner in his family and he discharges more of the parenting responsibilities for [L] in particular and for [K], when he is visiting. The parties had an intermittent relationship with one another from 1995 onwards. As has previously been indicated, for long periods of time they lived in separate States. There was some dispute regarding [K]’s paternity, which was resolved through DNA testing. Thereafter, when [K] was very young, Mr Bullen began to spend brief periods of time, up to one hour per week, with [K], in Ms Maynard’s presence. Following [K]’s first birthday, this time was gradually increased and by the time [K] was two, the father was spending two nights per fortnight with him. When [K] started school, the time was changed again to an alternate weekend regime. I have no doubt that Mr Bullen was desirous of spending as much time as possible with [K]. In early 2005, the parties reconciled their relationship but did not live together. The impression I have is that this was done for [K]’s benefit. However, the reconciliation did not work out. Thereafter, from August 2005 onwards, [K] spent alternate weekends from 3.00pm on Friday until 4.00pm on Sunday with Mr Bullen, as well as from after school on Tuesday until the commencement of school the following Wednesday in each week. This regime has remained in place until the present time, although it is Mr Bullen’s position that from mid-2007 onwards he has been pressing Ms Maynard to allow him to spend more time with [K]. Given these arrangements, I have no doubt that Mr Bullen has been an active and constant presence in [K]’s life up to this stage. This must be accounted as being to the credit of both his parents. The impression I have is that Ms Maynard has been somewhat protective of [K]. Certainly, Mr Bullen feels that he has had to struggle to increase his time with [K] and demonstrate his bona fides. In addition, he complains that he has assumed more of the responsibility for [K]’s travel arrangements to spend time with him.

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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