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Nash & Gammon

Nash & Gammon

Case [2023] FedCFamC2F 268 22 March 2023

Parental Responsibility

Best Interests of the Child

Relocation

Equal Shared Parental Responsibility

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nash & Gammon [2023] FedCFamC2F 268

File number(s): CSC 1031 of 2021

Judgment of: JUDGE COPE

Date of judgment: 22 March 2023

Catchwords: FAMILY LAW – parenting – relocation – where mother seeks to relocate from City B to Adelaide with the children – where father opposes relocation – child diagnosed with a mental health condition – where parties both work in transport industry on rosters – where mother currently commuting from City B to Adelaide for work – week about arrangement in place – agreement as to parental responsibility, communication, special times and school holidays – where father concerned about alleged risks posed by mother’s new partner – where Family Report writer supports relocation as mother would be more available to the children – mother’s personal benefits of relocation do not outweigh the negatives for the children – relocation is not in children’s best interest.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Part VII ss 60CA, 65AA, 121

Cases cited:
A v A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751

AIF v AMS [1999] 199 CLR 160; [1999] HCA 26

B and B: Family Law Reform Act 1995 (1997) FLC 92-755; [1997] FamCA 33

Babcock & Wadell [2019] FamCAFC 129

KB & TC (2005) FLC 93-224; [2005] FamCA 458

Godfrey v Sanders [2007] FLR 287; [2007] FamCA 102

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92

Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230

Paskansky & Paskansky (1999) FLC 92-878

Sigley v Evor (2009) 33 Fam LR 439; [2011] FamCAFC 22

Starr & Duggan [2009] FamCAFC 115

Tabac & Kelmer [2016] FCCA 1937

U v U [2002] 211 CLR 238; [2002] HCA 36

Wilburn & Wilburn [2019] FCCA 2131

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 150

Date of hearing: 10 & 11 November 2022

Place: City B

Counsel for the Applicant: Ms Stocks of Counsel

Solicitor for the Applicant: C Lawyers

Counsel for the Respondent: Mr Jacobs of Counsel

Solicitor for the Respondent: D Lawyers
ORDERS

CSC 1031 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS NASH

Applicant

AND:
MR GAMMON

Respondent

order made by:

JUDGE COPE

DATE OF ORDER:

22 March 2023

THE COURT ORDERS THAT:
Parental Responsibility
1.The mother and father have equal shared parental responsibility for the children namely X born in 2012 and Y born in 2014 (“the children”).
2.The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.

3.That notwithstanding the provisions of Order 1:
(a)The mother shall be responsible for 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 Nash & Gammon

Details

AGLC: Nash & Gammon [2023] FedCFamC2F 268
Case: [2023] FedCFamC2F 268
Decision Date

CaseChat Overview and Summary

The case before the Federal Circuit and Family Court of Australia (Division 2) involved an application by Ms Nash (the mother) seeking to relocate with the children from City B to Adelaide. Mr Gammon (the father) opposed the application. The court had to decide whether the relocation would be in the best interests of the children and, if so, what arrangements should be made regarding the children's living arrangements, time spent with each parent, and other relevant factors. The court examined the evidence presented by both parties, including the Family Report, and considered the statutory requirements under the Family Law Act 1975 (Cth). The court also weighed the advantages and disadvantages of the proposed relocation, taking into account the best interests of the children, the need to protect them from harm, and the capacity of each parent to provide for the children's needs. Ultimately, the court found that the relocation was not in the best interests of the children and made orders for the children to remain living in City B with a week about arrangement, as well as orders for time spent with each parent, communication, and other relevant matters.

Orders