Nash & Reis - [2013] FMCAfam 11

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASH & REIS

[2013] FMCAfam 11

FAMILY LAW – Children – relocation.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61DA, 65DAC

RR v VR (2002) FLC 93-099

Applicant:

MS NASH

Respondent:

MS REIS

File Number:

CAC 236 of 2012

Judgment of:

Brewster FM

Hearing dates:

21 & 22 November 2012

Date of Last Submission:

30 November 2012

Delivered at:

Canberra

Delivered on:

15 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Dickson

Solicitors for the Applicant:

Farrar Gesini Dunn

Counsel for the Respondent:

Mr Thexton

Solicitors for the Respondent:

Family Legal

ORDERS

That in these orders “contact” means spending time with.
That as and from the commencement of first term 2013 all previous orders in relation to the child [X], born [in] 2006 be discharged and these orders commence operation.
That the parties have equal shared parental responsibility in relation to the child.
That the child live with the respondent Ms Reis.
That the child have contact with the applicant Ms Nash as follows:
(a)On the third and seventh weekend of each school term which, subject to Orders 7 and 9, is to run from Friday to Sunday;
(b)For the first ten days in the mid year school holidays;
(c)For one half of the Christmas school holidays being the first part of holidays commencing in even numbered years and the second part of holidays commencing in odd numbered years.
That each party may communicate with the child on up to two occasions a week when the child is with the other party for periods other than weekend contact. This can be by telephone or, if either party requests, by Skype. In the event that a request is made that it be by Skype the other party is to ensure that she has Skype facilities available.
That one of the contact weekends is to be on the Queen’s Birthday long weekend and contact will end on the Monday.
That notwithstanding Order 5(a) in 2014 and each alternate year thereafter the weekend of Mothers Day is to be one of the contact weekends.
That until the child commences secondary school the applicant may nominate one weekend in first, third and fourth terms to be a weekend including the Monday. She is to give at least 14 days notice.
That either party may vary the contact weekend if there is a significant event involving the child that would indicate that a variation is appropriate. Unless it is impractical at least 14 days notice is to be given.
That one half of the Christmas school holidays will be computed by dividing the number of days the child does not attend school by two. If this is an uneven number of days the applicant is to have the additional day.
That when contact is in the first part of the Christmas holidays it is to commence on the first day after school breaks up. When it is in the second part of the holidays it is to conclude…

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 & Reis

Details

AGLC: Nash & Reis [2013] FMCAfam 11
Case: [2013] FMCAfam 11
Decision Date

CaseChat Overview and Summary

The matter before the Federal Magistrates Court involved a dispute between the parents of a six-year-old child, [X], regarding property division and child arrangements post-separation. The primary focus was on the respondent's proposal to relocate with [X] to Wollongong, which the applicant opposed. The court was required to decide whether the relocation would be in [X]'s best interests under the Family Law Act 1975.

The court examined several factors, including the benefit of [X] maintaining a meaningful relationship with both parents, the nature of the relationship between [X] and each parent, and the potential impact of relocation on [X]. It also considered the practical difficulties of maintaining contact and the capacity of each parent to provide for [X]'s needs. The court found that while relocation would limit the time [X] could spend with the applicant and involve changing schools, there were economic benefits for the respondent and family support in Wollongong. Balancing these factors, the court concluded that [X]'s best interests would be met by permitting the relocation.

The court ordered that [X] would live with the respondent and have specified contact with the applicant, including weekends and school holidays. It also made orders regarding communication between the parties, notification of significant events, and involvement in [X]'s schooling and extracurricular activities. The court declined to make orders that it considered would micromanage the parents' care of [X], emphasizing the importance of judicial minimalism in parental decision-making.

Orders