FAMILY COURT OF AUSTRALIA
| MURGATROYD & MURGATROYD | [2019] FamCA 617 |
| FAMILY LAW – PARENTING – Where there are four children of the marriage between the mother and the father in these proceedings – Where the mother is seeking to relocate with the four children of the marriage to her home country of Germany – Where this is opposed by the father who is seeking that the children remain living with him in Australia – Where both parties seek sole parental responsibility – Where in the event that the children are allowed to live in Germany, the father seeks a large number of prescriptive Orders regulating his time and contact with the children – Where there is no dispute between the parties about the family violence in their relationship – Where the mother is granted sole responsibility for the children in respect of long-term decisions about the children, and the remaining matters are to be shared responsibility between the parties – Where the mother is permitted to relocate to Germany with the children and the father is allowed to spend regular holiday time with the children if he is to remain in Australia and regular contact if he is to move to Germany. |
| Family Law Act 1975 (Cth) |
| B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Cowley & Mendoza (2010) 43 Fam LR 436 Heath v Hemming (No 2) [2011] FamCA 749 McCall v Clark (2009) FLC 93-405 Preston v Preston [2011] FamCA 618 |
| APPLICANT: | Mr Murgatroyd |
| RESPONDENT: | Ms Murgatroyd |
| INDEPENDENT CHILDREN’S LAWYER: | Elizabeth Fairon |
| FILE NUMBER: | MLC | 12634 | of | 2016 |
| DATE DELIVERED: | 4 September 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 18, 19, 20, 21 and 26 June 2019 |
REPRESENTATION
| THE APPLICANT: | Self-represented |
| THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Dodd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fairon Life Law Solutions |
Orders
That in respect of the children, W born … 2005, X born … 2007, Y born … 2009, and Z born … 2012 (“the children”), the mother shall have sole parental responsibility in respect of decisions about their health and education and also for applying for and obtaining passports for the children, but the mother and the father shall have equal shared parental responsibility in respect of decisions about their religion, their names, and any changes to the parenting arrangements provided for by these Orders which make it significantly more difficult for the father to spend time with the children.
That notwithstanding the preceding orders:
(a)the mother shall be responsible for the daily care, welfare and development of the children when the children are living with the mother; and
(b)the father shall be responsible for the daily care, welfare and development of the children when the children are living with the father.
That the mother is permitted to relocate the primary residence of the children to Germany and she may do so any day after Sunday, 8 September 2019.
That the mother shall inform…
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- Case
- [2019] FamCA 617
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of shared parental responsibility for various decisions concerning the children's health, education, religion, and names. It also had to establish the practical arrangements for the children's time with each parent, particularly in light of the proposed international relocation, and address the registration of the orders in Germany.
Forrest J ordered that the mother have sole parental responsibility for decisions regarding the children's health and education, and for passport applications. Equal shared parental responsibility was ordered for decisions concerning religion, names, and any changes to parenting arrangements that would significantly impede the father's time with the children. The mother was permitted to relocate the children to Germany, with specific provisions for the father's time with the children both before and after the relocation, including arrangements for school holidays and communication. The court also made orders regarding the holding of passports, the father's exclusive possession of the former matrimonial home, and the registration of the orders in Germany.
Orders
Orders of the court
1.
That in respect of the children, W born … 2005, X born … 2007, Y born … 2009, and Z born … 2012 (“the children”), the mother shall have sole parental responsibility in respect of decisions about their health and education and also for applying for and obtaining passports for the children, but the mother and the father shall have equal shared parental responsibility in respect of decisions about their religion, their names, and any changes to the parenting arrangements provided for by these Orders which make it significantly more difficult for the father to spend time with the children.
2.
That notwithstanding the preceding orders:
(a) the mother shall be responsible for the daily care, welfare and development of the children when the children are living with the mother; and
(b) the father shall be responsible for the daily care, welfare and development of the children when the children are living with the father.
3.
That the mother is permitted to relocate the primary residence of the children to Germany and she may do so any day after Sunday, 8 September 2019.
4.
That the mother shall inform the father in writing by email of the date and time that she and the children will be departing from Brisbane as soon as she has booked departure flights for them.
5.
That the children shall spend time with the father from after school on Thursday, 5 September until 5.00 pm on Sunday, 8 September 2019 with the father to collect them from the front gate of the mother’s home at the commencement of that time and to return them to the front gate of that home at the conclusion of that time, departing straight after he drops them at the gate.
6.
That the mother shall be entitled to have a friend of her choice be present at the times that the father is to collect the children and is to return the children and she need not go out to the gate or speak with the father if she does not choose to.
7.
That within twenty-eight (28) days of her arrival in Germany, the mother shall:
(a) attend to the formal registration of these orders in a Court of competent jurisdiction in Germany pursuant to Article 26 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996; and
(b) provide to the father a certified copy of a document evidencing such registration and any Orders the German Court makes and a certified translation in English of such documents.
8.
That the children shall live with the mother.
9.
That should the father relocate to live in Region J, Germany, the children shall spend time and communicate with the father at all times as may be agreed in writing, and failing agreement, then:
(a) each alternate weekend from after school Friday until before school Monday, or where Monday is a public holiday or pupil free day, then to before school Tuesday; and
(b) one half of all school holiday periods for up to seven (7) consecutive days in each school holiday period, and on a week-about basis during the summer school holiday period.
10.
That should the father not relocate to live in Germany, then the mother shall send the children, at her expense, to Australia to spend time with the father for a minimum period of at least three (3) weeks (excluding travel time) during every Region Jn summer school holiday period. The mother may choose to travel with the boys for those holidays or not. She shall give the father at least six (6) calendar months written email notice of the exact dates that the boys’ German summer school holidays will commence and finish and the father shall elect the particular three (3) weeks that he will take time off and have the boys stay in his care and give the mother at least four (4) calendar months’ written email notice of his elected weeks with the mother to then book and pay for the flights for the boys, notifying the father of the details of the flights by way of written email at least three (3) calendar months before the date of departure from Germany.
11.
That the father shall collect the boys from Brisbane International Airport Terminal upon their arrival and shell deliver them back to that airport terminal in time to catch their return flight home at the end of the three (3) week holiday with him.
12.
That the father (at his expense) is at liberty to travel to Germany at any time to spend time with the children upon the giving of twenty-eight (28) days’ written email notice to the mother, with the children to spend time with the father:
(a) if during the school term – from after school Friday to before school Monday, along with Tuesday and Thursday afternoon from after school until 7.00 pm in each week; and/or
(b) for up to seven (7) days in the shorter German school holiday periods (subject to the next paragraph that provides particularly for Christmas time) and on a week-about basis over the balance of the German summer school holiday period that they are not with him in Australia.
13.
That if the father elects to travel to Germany during the children’s Christmas school holidays then at least every second year (commencing in 2020) the children shall stay in their mother’s care (being returned to her care for these days, if necessary) from 10.00 am on 24 December to 5.00 pm on 26 December, otherwise the seven (7) days the boys spend with the father can include those days.
14.
That during any German school holidays when the boys are spending time with the father when he travels to Germany, the father shall be permitted to take the boys with him to any other country in the European Union and also to the United Kingdom of Great Britain and Northern Ireland (if by then it is no longer a member of the European Union).
15.
That if the father elects, each second year, he may fly the children to Brisbane (at his expense) for their German Christmas school holiday period provided they only leave Germany after their school holidays have started and arrive back in Germany before their school holidays conclude. That if the father elects to have the boys come out for this holiday, he shall give the mother at least four (4) calendar months written email notice and he shall then book and pay for the flights for the boys, notifying the mother of the details of those flights by way of written email at least three calendar months before the date of departure. The mother shall ensure the children catch the flight to Australia and the father shall ensure the children catch the return flight to Germany.
16.
That the children be at liberty to speak with either the father or the mother by Skype or WhatsApp (or other video call application like FaceTime) at all reasonable times when they are in the other parent’s care, but failing agreement then, when the boys are with the mother:
(a) the mother shall facilitate a Skype or WhatsApp (or other video call application) video call between the children and the father each Wednesday and Sunday afternoon Queensland time (with the call to be made by the mother for the boys in the morning, local German time, to the father – before the children go to school on Wednesday mornings particularly);
(b) the children will be given privacy during such calls; and
(c) the mother will encourage the children to speak with their father and ensure that they do;
and when the children are with the father:
(d) the father shall facilitate a Skype or WhatsApp (or other video call application) video call between the children and the mother each Wednesday and each Sunday afternoon Queensland time if they are with him in Queensland or German time if they are with him in Europe;
(e) the children will be given privacy during such calls; and
(f) the father will encourage the children to speak with their mother and ensure that they do.
17.
That the mother shall provide the children with an email account of their own so that they can communicate with their father by email and he may communicate with them, as and when they like, with the mother to encourage the children to check it regularly, to write to their father regularly, and to respond to any emails their father may send them on a regular basis. If and when each of the boys has his own mobile phone, they shall be at liberty to communicate with the father by such device as they see fit to and the mother shall inform them of that.
18.
That on each of the children’s birthdays, the father’s birthday, Father’s Day, and Christmas Day, should the children not be in the father’s care on the day, the mother shall facilitate a Skype/WhatsApp (or other video call application) call to the father from the children so that such call coincides with the morning time wherever the father is at the time.
19.
That on each of the children’s birthdays, the mother’s birthday, Mother’s Day, and Christmas Day, should the children be in the father’s care on the day, the father shall facilitate a Skype/WhatsApp (or other video call application) call to the mother from the children so that such call coincides with the morning time wherever the mother is at the time.
20.
That the father and the mother shall:
(a) keep the other parent informed at all times of their residential address, contact telephone number and email address, and notify each other of any change within two (2) days of such change occurring;
(b) keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the children;
(c) inform the other parent as soon as reasonably practicable of any significant health issue or illness suffered by the children; and
(d) inform the other parent as soon as reasonably practicable, and at the latest, within two (2) hours, of any emergency care or hospitalisation required for the children.
21.
That the mother shall inform the father by email writing of the name and address of any school that any of the children attend within seven (7) days of being aware that the child will be attending that school and the mother, by this Order, shall authorise the school attended by the child to give the father information about the child’s educational progress and other school related activities and to supply the father, at his expense if there is an expense, with copies of school reports, photographs, certificates and awards obtained by the child. The father shall be at liberty to show this paragraph of these Orders to the administration of any such school if they require it.
22.
That this Order shall be an authority directed to the children’s doctors and any other treating medical or health practitioners to provide each parent with all information including documents and reports relating to the health of the children that may lawfully be provided to the parent, and to discuss with any party all matters relating to the children's health and well-being that they may lawfully be entitled to discuss.
23.
That during the time the children are with either parent, each parent shall:
(a) respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b) speak of and to the other parent respectfully;
(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parties in the hearing or presence of the children; and
(d) not use physical discipline at all on any of the children.
24.
That where either parent elects to undergo counselling to assist with managing the outcome set out in these Orders that parent is at liberty to release, pursuant to s 121 of the Family Law Act 1975 (Cth), the following documents to their chosen general practitioner and mental health professional including counsellor, psychologist or psychiatrist:
(a) a copy of these orders and the reasons for judgment;
(b) the Family Reports of Mr Thomas C filed by affidavit dated 5 February 2019;
(c) the psychiatric assessment of the parties filed by affidavit dated 4 June 2018.
25.
That the children be permitted to depart from the Commonwealth of Australia and to that end Orders 7 to 9 of the Orders dated 30 December 2016 relating to the removal of the children from the Commonwealth of Australia be discharged.
26.
That any passport issued for the children shall be held by the mother (save for when the boys might be in the father’s care) with the mother at liberty to forthwith collect from the Brisbane Registry of the Family Court of Australia both Australian and German Passports for the children, W born … 2005, X born … 2007, Y born … 2009, and Z born … 2012 and the father shall ensure that all the boys passports are returned with them to the mother when the boys are returned to the mother at the end of any time they spend with the father.
27.
That until further Order, from the time of the departure of the mother and the children from Australia, the father shall be entitled to exclusive possession and sole occupation of the former matrimonial home that the mother and children have been living in.
28.
That the Independent Children’s Lawyer is discharged.
29.
That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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