Mulvany and Lane - [2008] FMCAfam 473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MULVANY & LANE

[2008] FMCAfam 473

FAMILY LAW – Children – relocation – property.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65C, 75(2), 79

NHC & RCH (2004) FLC 93-204
Ely & Ely [2006] FMCAfam 512
Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC93-143
M & M [1998] FamCA42

Applicant:

MR MULVANY

Respondent:

MS LANE

File number:

BRC 805 of 2007

Judgment of:

Howard FM

Hearing dates:

17 & 18 March 2008

Date of last submission:

2 April 2008

Delivered at:

Brisbane

Delivered on:

22 May 2008

REPRESENTATION

Counsel for the Applicant:

Mr Baston

Solicitors for the Applicant:

Wiltshire Lawyers

Counsel for the Respondent:

Ms Hogan

Solicitors for the Respondent:

Barry & Nilsson

ORDERS

I direct that the parties file and serve a proposed final order to reflect these Reasons for Judgment by no later than 4.00 p.m. on 29 May 2008.
I direct that in the event that the parties are unable to reach agreement as to the terms of the proposed final order the matter shall be relisted for further mention.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 805 of 2007

MR MULVANY

Applicant

And

MS LANE

Respondent

REASONS FOR JUDGMENT

Background

The Applicant is Mr Mulvany. He was born in 1954 and is presently aged 53 years.
The Respondent is Ms Lane. She was born in Hong Kong in 1961 and is presently aged 46 years.
The parties commenced cohabitation in August 1997. The parties married in 1998.
The parties separated finally on 4 November 2006.
The parties cannot agree on parenting orders concerning S (born in 2002). Furthermore, the parties are unable to agree on how to divide their property.

Parenting issues

The mother seeks parenting orders that will enable her to relocate with the child to live in Hong Kong.
The father seeks parenting orders that would see the child remain living in Australia.
The child currently lives in a week about shared care arrangement with both parties on or near the Gold Coast, Queensland.
A paternity test conducted at the request of the mother revealed that the Applicant was not the biological father of the child. The first time that the Applicant became aware that there was a possibility that he was not the child’s biological father was when the Respondent’s solicitors forwarded a letter to the Applicant’s solicitors in December 2007. The Applicant submitted to a DNA test on 21 December 2007. I note and accept the following evidence contained in the father’s Affidavit filed by leave on 17 March 2008:-
“27.In response to Ms Lane’s requests, I submitted to a DNA test on 21 December 2007. On or about 3 January 2008 I received results from DNA Queensland on 3 January 2008. The results of the DNA test excluded me from being the…

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 Mulvany and Lane

Details

AGLC: Mulvany and Lane [2008] FMCAfam 473
Case: [2008] FMCAfam 473
Decision Date: 22 May 2008

CaseChat Overview and Summary

The case of Mulvany and Lane involved the dispute over the custody of a child, S, between the child's father, the applicant, and the child's mother, the respondent. The primary consideration under section 60CC(2) of the Act was whether the child would benefit from a meaningful relationship with both parents and whether the child needed protection from harm. The mother argued that the father, being an American living in Hong Kong, was not aware of the child's existence and was not contactable. The mother expressed her intention to return to Hong Kong, citing her social isolation and emotional distress in Australia.

The legal issue before the court was to determine whether the father should be considered a relevant primary consideration under section 60CC(2)(a) of the Act. The court accepted the argument that the father, not being a parent within the Act's definition, did not warrant consideration as a primary factor for the child's benefit in having a meaningful relationship. The court found that the mother was determined to return to Hong Kong, regardless of the outcome of the case. The mother testified that she would not be happy remaining in Australia if the child was ordered to stay there. The court found that the mother's primary considerations for returning to Hong Kong were her lack of social support, financial instability, and cultural isolation in Australia.

The court concluded that the only relevant primary consideration was the benefit to the child of having a meaningful relationship with the mother. The court acknowledged the mother's intention to return to Hong Kong, despite her earlier comments suggesting she might stay if the child remained in Australia. The court found that the mother was undecided about her future actions concerning the child's residence. The court considered the mother's affidavit, which detailed her reasons for wanting to relocate to Hong Kong and her concerns about her emotional health and financial stability in Australia.

The court ordered that the parties file and serve a proposed final order reflecting these reasons by a specified deadline. If the parties could not agree on the terms of the final order, the matter would be relisted for further mention.

Orders

Orders of the court

I direct that the parties file and serve a proposed final order to reflect these Reasons for Judgment by no later than 4.00 p.m. on 29 May 2008.

I direct that in the event that the parties are unable to reach agreement as to the terms of the proposed final order the matter shall be relisted for further mention.

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

Section 60CC(2) of the Act states:-“60CC(2) [Primary considerations] 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.” I accept the following submission of Ms Hogan of counsel obtained in her, “Brief Outline of Submissions on behalf of the Respondent Mother” handed up on 2 April 2008:-“However, it is further submitted that, in determining such orders, the Court would not fail to recognise that parliament specifically has not included in s.60CC(2)(a) of the primary considerations to which the Court must have regard, the benefit to the child of having a meaningful relationship with persons other than the child’s parents – parliament’s intention, it is submitted, remains to distinguish between parents (in respect of whom a meaningful relationship is accorded a status of a primary consideration) and persons other than parents (within which category the applicant in the present case falls).” In this case the only “parent” who is a party to the proceedings is the mother (the Respondent). As noted earlier, the Applicant is not a “parent” within the meaning of that term as used in the Act. It follows that the only “relevant” primary consideration is the benefit to the child of having a meaningful relationship with the mother. It should be noted at this point that the mother says the child’s biological father:-a)is an American whom she met in Hong Kong;b)has not been made aware that he is S’s father;c)has not been made aware of S’s existence;d)is not aware of these Court proceedings; ande)is not contactable – having apparently left Hong Kong. The mother gave evidence that she will return to live in Hong Kong irrespective of the outcome of this case. I find that the mother is desperately unhappy living in Australia. The reasons for this are no doubt many and varied. I find or infer from the evidence that the main reasons for wanting to return to Hong Kong are as follows:-a)following the breakdown of her marriage to the Applicant the mother feels alone and socially isolated in Australia; andb)this has led to a very strong desire on the mother’s part to return to her native Hong Kong in order to live with or near her extended family. I accept that the mother may have told Denise Britton that she would remain in Australia if S was ordered to stay here. On the face of it the mother’s comments to Ms Britton are in direct contrast to her stated intention at the trial. The mother is clearly torn on this issue. She wants to return to Hong Kong but would obviously not be happy to do so if S was ordered to remain living in Australia. I do not consider that the mother has yet truly made up her mind as to what she would do if S were ordered to remain in Australia. I accept the following evidence of the mother contained in her Affidavit filed 13 March 2008:-“MY PROPOSAL TO LIVE IN HONG KONGReasons why I have decided to live in Hong Kong267.At the conclusion of these court proceedings, I will relocate to Hong Kong. My proposal is that S also live in Hong Kong with me.268.In summary, I feel I am unable to live in Australia for the following reasons:-A. I have no emotional support- I do not have any family that live in Australia and have very few friends. I am very close to my family in Hong Kong. I also miss Chinese culture and the cosmopolitan way of life in Hong Kong. I feel isolated and lonely in Australia and do not feel that I have integrated well to the Australian way of life. I would not be happy if I was to remain in Australia and I am concerned that my emotional health would deteriorate and negatively impact upon S.B. I am unable to financially support myself or S- I currently receive no child support or any other financial assistance from Mr Mulvany.- Furthermore I receive minimal government benefits.- Currently, I am solely reliant on my family for my financial support.- As previously deposed to, I have not worked in Australia other than for Mr Mulvany’s business. I did not receive a wage for the work I did whilst I was working for Mr Mulvany. I have no other experience in the Australian workforce and limited qualifications.- Whilst my English is considered to be of a high quality in Hong Kong, it is considered poor by Australian standards and would limit my employment opportunities.- I am aged 46 years.- Taking into account my age coupled with my limited work experience, qualifications and English I am doubtful whether I would be able to obtain work in Australia sufficient to support myself and S.- By comparison, I have already been offered two positions in Hong Kong as deposed to earlier in my affidavit and have a number of contacts in Hong Kong who can assist me find work.- Furthermore my family has indicated to me that they will assist with my financially support me (sic) if needed when I live in Hong Kong. My family have indicated that they are reluctant to financially support me should I remain in Australia after the conclusion of the Court hearing and are unable to financially support me on an ongoing basis. I refer and rely on the Affidavit of my Father and sister B filed in these proceedings.”