FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILLS & WATSON | [2008] FMCAfam 2 |
| FAMILY LAW – Parenting – relevance of father’s violence and other inappropriate behaviour – where not in dispute that child should live with mother and father's time with child must be supervised – where child estranged from father – where mother relocated with child from Tasmania to Victoria without father’s knowledge or consent – where mother has re-partnered – where mother, her new partner, the child and the child of the mother and her new partner in a settled and stable environment in Victoria – where father seeks orders compelling mother to relocate with child from Victoria back to Tasmania. FAMILY LAW – Parenting orders – injunctions – power of the court to order a parent to relocate – discussion of Full Court decision in Sampson and Hartnett (No 10) (2007) Fam CA 1365 – whether dicta in Sampson and Hartnett (No 10) (2007) Fam CA 1365 applies to ex-nuptial children, or only to children of a marriage – applicability of Part VII of Family Law Act 1975 to ex-nuptial children generally – discussion of High Court decision in MIMIA & B (No 3) (2004) FLC 93-174 – discussion of meaning and effect of sections 69ZH and 69ZE, and of the diversity jurisdiction in section 69ZJ of the Family Law Act 1975 – discussion of the jurisdictional provisions in Subdivision F of Division 12 of Part VII of the Family Law Act 1975 – applicability of injunction provisions in sections 114(3) and 68B(2) of the Family Law Act 1975, including applicability of these provisions to ex-nuptial children. |
| Family Law Act 1975 (Cth) |
| A & A (Relocation Approach) (2000) FLC 93-035 North SC, “Accrued jurisdiction; questions of discretion and power” (2005) AJFL 178 |
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- AGLC
- Mills & Watson [2008] FMCAfam 2
- Case
- [2008] FMCAfam 2
- Decision Date
CaseChat Overview and Summary
The central legal questions were whether the court had the authority to order a parent to relocate, and if the relevant legal principles applied to ex-nuptial children. The court examined the Full Court decision in Sampson and Hartnett (No 10) and the High Court decision in MIMIA & B (No 3). The court also considered the applicability of sections 69ZH, 69ZE, and 69ZJ of the Family Law Act 1975, as well as the jurisdictional provisions in Subdivision F of Division 12 of Part VII of the Act. Furthermore, the court evaluated the applicability of injunction provisions in sections 114(3) and 68B(2) of the Act to ex-nuptial children.
In its reasoning, the court concluded that the child should remain with the mother in Victoria, given the stable and settled environment there. It found that the father’s past behaviour justified supervised visitation. The court held that it did not have the jurisdiction to order a parent to relocate, nor could it compel the mother to return to Tasmania. The court found that the jurisdictional provisions and the injunction provisions of the Family Law Act 1975 applied to ex-nuptial children. Consequently, the court discharged all previous parenting orders and made new orders regarding the child's living arrangements, visitation, communication, and other relevant matters.
The final orders included provisions for the child to live with the mother in Victoria, equal shared parental responsibility for both parents, supervised visitation by the father in Tasmania and Victoria, and communication arrangements. The father was also restrained from sending religious material to the child or mother. The parties were granted liberty to apply for further orders as necessary to implement the court’s judgment and orders.
Orders
Orders of the court
1.
All previous parenting orders be discharged.
2.
The child I born in 2001 (“the child”) live with the mother, MS WATSON (“the mother”).
3.
The mother and the father, MR MILLS (“the father”), have equal shared parental responsibility for the child.
4.
Commencing on a date to be fixed, the father spend time with the child in Tasmania on the following basis:
(a) for two consecutive days (or, during school holidays, for up to four consecutive days) in every sixth weekend;
(b) time shall be spent on a supervised basis to be effected at the Children’s Contact Service operated by Relationships Australia in L (“LCSS”);
(c) time, length of and number of the visits will be determined by the coordinator of the LCSS (“the LCSS coordinator”), from time to time in his or her sole discretion;
(d) the parties will contact the LCSS coordinator at least twenty-one days prior to each scheduled visit to make arrangements for times and dates;
(e) subject to (f) below, the mother bear her and the child’s travel (including, but not limited to, interstate travel) and other costs of and incidental to the father spending time at LCSS pursuant to this paragraph;
(f) the parties shall share equally any fees associated with the use of the LCSS; and
(g) additional holiday time will be subject to the availability of the LCSS on the days preceding or following the weekend.
5.
Commencing on a date to be fixed (which date is to be either three weeks before or three weeks after the date for commencement of the spend time arrangement at LCSS pursuant to paragraph 4 above), the father spend time with the child in Victoria on the following basis:
(a) for two consecutive days (or, during school holidays, for up to four consecutive days) in every sixth weekend;
(b) time shall be spent on a supervised basis to be effected at the Children’s Contact Service operated at B, Victoria (“BCSS”);
(c) time, length of and number of the visits will be determined by the coordinator of the BCSS (“the BCSS coordinator”), from time to time in his or her sole discretion;
(d) the father will advise the mother and the BCSS coordinator not less than twenty-eight days prior to the scheduled time, as to whether he wishes to spend the time contemplated in this paragraph;
(e) subject to (f) below, the father bear his travel (including, but not limited to, interstate travel) and other costs of and incidental to the father spending time at BCSS pursuant to this paragraph;
(f) the parties shall share equally any fees associated with the use of the BCSS; and
(g) additional holiday time will be subject to the availability of the BCSS on the days preceding or following the weekend.
6.
The father spend such further or other time with the child as may be agreed from time to time in consultation with either the LCSS coordinator or the BCSS coordinator.
7.
In the event that either the LCSS or the BCSS is unavailable, the parties will do all such acts and things necessary to locate an alternative supervisory centre, or will request the LCSS or the BCSS to offer the next available time for a visit.
8.
The father will communicate with the child as follows:
(a) by sending letters, cards, gifts and photographs to the child at a post office box to be advised by the mother, and:
(i) the mother will advise as to the post office box number within seven days of the date of this Order;
(ii) the mother has liberty to open any package forwarded by the father and will not be required to pass on any material which in her discretion is offensive or abusive; and
(iii) subject to (ii) above, the mother will pass on the contents of any package to the child within seven days of its receipt;
(b) the mother will facilitate the child sending a package to the father not less than once per calendar month and the father will keep the mother advised as to his postal address from time to time;
(c) by telephone each Wednesday at 7.00 pm, commencing 14 May 2008, on the following basis:
(i) the father will provide the child with a prepaid mobile telephone, the costs of which he will be responsible for;
(ii) the mother will ensure that the telephone is switched on and available to the child at the ordered time; and
(iii) the father will call the mobile at the ordered time.
9.
The father be and is hereby restrained by injunction from forwarding to the child, or to the mother, any material containing religious content.
10.
The father do comply with any treatment or medication prescribed by his Psychiatrist or General Practitioner from time to time.
11.
All parties have liberty to apply, on seven days notice in writing to the other parties, for further orders –
(a) specifying the dates upon which the spend time arrangements described in paragraphs 4 and 5 above are to commence;
(b) specifying the manner in which notice is to be given for any of the purposes specified in the orders made this day; and
(c) otherwise required to effectively implement –
(i) the Judgment of Walters FM handed down on 1 April 2008; and
(ii) any of the orders made this day.
AND THE COURT NOTES THAT:
12.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
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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