Oakley and Anor and Read - [2007] FamCA 1520

FAMILY COURT OF AUSTRALIA

OAKLEY AND ANOR & READ

[2007] FamCA 1520

FAMILY LAW – CHILDREN – With whom a child lives – Relocation - two fathers who are brothers – mother proposing relocation from town T to town B – fathers proposing she return to live in town C – discussion of relocation principles post 1 July amendments and the earlier case law – discussion of approach to relocation issue under amended Part VII provisions - order for children to live in town C and mother to elect to return or move to town B.

Family Law Act 1975 (Cth)

FIRST APPLICANT:

Mr P Oakley

SECOND APPLICANT:

Mr G Oakley

RESPONDENT:

Ms Read

INDEPENDENT CHILDREN’S LAWYER:

Cope Family Law

FILE NUMBER:

TVF

1731

2002

DATE DELIVERED:

20 December 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Cairns

JUDGMENT OF:

Moore J

HEARING DATE:

17, 18, 19 & 25 October 2007

REPRESENTATION

FIRST APPLICANT:

In person

SECOND APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Honchin

SOLICITOR FOR THE RESPONDENT:

Purcell Taylor Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Benson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Cope Family Law

Orders

All previous parenting orders related to the children K and L [‘the children’] are discharged.
The mother Ms Read and the father G Oakley are to have equal shared parental responsibility for K.
The mother Ms Read and the father P Oakley are to have equal shared parental responsibility for L.
The children are to live in C and for that purpose all three parents are to facilitate that occurring on or before the commencement of the 2008 school year.
The mother is to elect whether she will live in C on or before twenty-one (21) days from the date of the orders and to communicate that forthwith to each of the fathers.
If the mother elects to live in C –
(i)all three parents are to confer and discuss the area in which she will live and where the children will attend school, with the assistance if required of the supervisor appointed pursuant to order 12 hereof with the intent of reaching agreement about those matters;
(ii)the fathers are to provide her equally with financial assistance to enable her to transport her belongings to C, pay a bond in agreed accommodation in an agreed area, and pay the equivalent of one month’s rent.
If the mother elects to live in C each child is to live with his mother save for the times set out below when each is to live with his father:
(i)during school terms, each fortnight from after school Thursday until before school Tuesday;
(ii)during school holidays, for one half of each school holiday period, being for the first half in even numbered years and the second half in odd numbered years.
(iii)on special occasions for times to be agreed to include Father’s Day and the father’s birthday if the occasion does not fall within either (i) or (ii) hereof;
(iv)at other times agreed.
If 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 Oakley and Anor and Read

Details

AGLC: Oakley and Anor and Read [2007] FamCA 1520
Case: [2007] FamCA 1520
Decision Date: 20 December 2007

CaseChat Overview and Summary

In the matter of Oakley and Anor and Read, Moore J of the Federal Circuit Court of Australia considered parenting orders concerning the children K and L. The dispute involved the parents, Ms Read and the fathers, G Oakley and P Oakley, and their arrangements for the children's living situations and time with each parent.

The court was required to determine the most appropriate parenting arrangements for K and L, including the discharge of previous orders, the allocation of parental responsibility, and the specific living arrangements and time each child would spend with their respective parents. A key issue was the mother's election to either live in C or not, and the consequential impact on the children's residence and the fathers' involvement. The court also had to consider the practicalities of implementing these arrangements, including financial assistance and communication.

Moore J discharged all previous parenting orders and made new orders for equal shared parental responsibility for both children. The court ordered that the children were to live in C, with all three parents facilitating this move. The mother was given an election to live in C, with detailed provisions for financial assistance and arrangements for her accommodation and the children's schooling if she chose to do so. If she elected to live in C, the children would live with her, with specific time allocated to each father during school terms and holidays, and provisions for special occasions and communication. If the mother elected not to live in C, the children would live with their fathers in C, with defined time arrangements for the mother during school terms and holidays, and provisions for travel costs and communication. The court also ordered supervision of these arrangements by a Family Consultant for three months.

Orders

Orders of the court

All previous parenting orders related to the children K and L [‘the children’] are discharged.

The mother Ms Read and the father G Oakley are to have equal shared parental responsibility for K.

The mother Ms Read and the father P Oakley are to have equal shared parental responsibility for L.

The children are to live in C and for that purpose all three parents are to facilitate that occurring on or before the commencement of the 2008 school year.

The mother is to elect whether she will live in C on or before twenty-one (21) days from the date of the orders and to communicate that forthwith to each of the fathers.

If the mother elects to live in C –

(i) all three parents are to confer and discuss the area in which she will live and where the children will attend school, with the assistance if required of the supervisor appointed pursuant to order 12 hereof with the intent of reaching agreement about those matters;

(ii) the fathers are to provide her equally with financial assistance to enable her to transport her belongings to C, pay a bond in agreed accommodation in an agreed area, and pay the equivalent of one month’s rent.

If the mother elects to live in C each child is to live with his mother save for the times set out below when each is to live with his father:

(i) during school terms, each fortnight from after school Thursday until before school Tuesday;

(ii) during school holidays, for one half of each school holiday period, being for the first half in even numbered years and the second half in odd numbered years.

(iii) on special occasions for times to be agreed to include Father’s Day and the father’s birthday if the occasion does not fall within either (i) or (ii) hereof;

(iv) at other times agreed.

If the mother elects to live in C the fathers and the children may communicate regularly at reasonable times and duration by available means.

If the mother elects not to live in C, each child is to live with his father in C and spend time with their mother as set out below, subject to order 10 hereof:

(i) during school terms, on one long weekend per term [to include either the Friday or the Monday] nominated to the fathers by the mother in writing no later than two (2) weeks in advance;

(ii) during school terms, on any other weekends agreed;

(iii) during school holidays, for all of the holidays at the end of Terms 2 and 3 and for half of the holidays at the end of Terms 1 and 4, the latter to be for the first half in odd numbered years and the second half in even numbered years.

10.

Provided the mother lives no further distance from the town C than the town B, to facilitate the orders in 9 hereof the mother is to pay half of the costs of air travel and each of the fathers is to pay the other half between them.

11.

If the mother elects not to live in C she and the children may communicate regularly by telephone at reasonable times and duration and/or by post, email and webcam as may be available.

12.

Pursuant to section 65L these orders are to be supervised for a period of three (3) months by a Family Consultant nominated by the Manager Child Dispute Services of the Cairns Registry and the supervisor is to give any party to these orders such assistance as is reasonably requested in relation to the orders and may report to the Court at their own instigation or in accordance with any further order.

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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