FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCAULIFFE & DAVIES | [2010] FMCAfam 1481 |
| FAMILY LAW – Parenting – short-term defined relocation – consent order for return of parent at conclusion of overseas [employment] – best interests of child – potential risk from dangers in overseas city identified by Department of Foreign Affairs & Trade. |
| Evidence Act1995 (Cth), s.144 Family Law Act1975, s.60B, 60CA, 60CC(2), 60CC(3)(a) – (l), 61DA, 65DAA, 94AAA |
| Ahcraft v Haber [2010] FamCA 6 B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context, (Melbourne: Oxford University Press, 2008) J. Behrens, “U v U: The High Court on Relocation,” (2003) 27 Melbourne University Law Review 572 |
| Applicant: | MR MCAULIFFE |
| Respondent: | MS DAVIES |
| File Number: | CAC 1457 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 17 November 2010 |
| Date of Last Submission: | 2 December 2010 |
| Delivered at: | Canberra |
| Delivered on: |
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- AGLC
- McAuliffe and Davies [2010] FMCAfam 1481
- Case
- [2010] FMCAfam 1481
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to address included the primary residence of the child, the extent of parental responsibility, and the terms under which the child could relocate with the Mother to the Philippines. Additionally, the court had to consider the visitation arrangements and the means of communication between the child and the Father during the relocation period.
In reaching its decision, the court recognised the importance of the child's welfare and the need for a balanced approach to parental responsibilities. The court awarded the primary residence of [X] to the Mother, while granting the Father equal shared parental responsibility. The Mother was permitted to relocate with the child to Manila, the Philippines, for a specified period, with conditions attached to facilitate continued contact between the child and the Father. The court also outlined detailed visitation and communication arrangements to ensure that the child maintained a relationship with both parents.
The court's orders included provisions for the child to live with the Mother, with the Father having specified visitation rights both in Manila and in Australia. The court mandated that the Father assist the Mother in obtaining necessary travel documents and facilitated ongoing communication through various means. The court also required the parents to participate in family dispute resolution upon their return to Australia to negotiate further arrangements for the child's time with the Father.
Orders
Orders of the court
1.
The child, [X], born [in] 2007 (‘[X]’) live with the Respondent Mother.
2.
The parties shall have equal shared parental responsibility for [X].
3.
The Mother be at liberty to relocate with [X] to live in Manila, the Philippines, from [omitted] 2011 until [omitted] 2014.
4.
Within 7 days of request by the Mother, the Applicant Father will do all things and sign all such documents as are necessary to enable the Mother to obtain a passport and any other relevant documents for [X] to be permitted to travel to the Philippines.
5.
During the [employment] period, [X] to spend time with the Father as follows:
(a) in Manila, upon the Father providing 21 days written notice to the Mother, at times and dates to be agreed in writing between the parties;
(b) in Australia, on two occasions each calendar year, for a period of up to 7 days, at dates and times to be agreed in writing between the parties.
6.
During the [employment] period each party will facilitate the child [X] communicating with the Father as follows:
(a) By telephone as agreed between the parties and failing agreement, on at least two occasions per week;
(b) By Skype or other similar forms of communication, as agreed between the parties.
7.
For the purpose of Order 6 above, the Mother will acquire and maintain a working computer, webcam and any other computer programs at her home.
8.
The Mother will keep the Father informed of [X]’s wellbeing and progress, by providing the Father with photographs, school reports and other relevant documents, and by email to the Father on at least one occasion per week.
9.
Within six weeks of the Mother and [X] returning to Canberra in 2014, the Mother and Father will attend Family Dispute Resolution for the purposes of negotiating arrangements for [X] to spend time with the Father.
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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