Olsen and Drewery - [2011] FamCA 1025

FAMILY COURT OF AUSTRALIA

OLSEN & DREWERY

[2011] FamCA 1025

FAMILY LAW – CHILDREN – Relocation – where the mother applies to relocate to Country C with the parties’ three-year-old daughter to live with her new husband – where the father resists the mother’s Application – where the mother has had minimal face-to-face contact with her new husband, to whom she has been married for just over one year – where the mother and her husband have recently had a daughter together – where the mother has indicated that remaining in Australia is not an option available to her – where the child has a meaningful relationship with both of her parents and has a strong attachment to each – where the child currently spends substantial and significant time with each parent – whether it is in the child’s best interests to relocate to Country C with her mother – where there will be significant changes regardless of the Court’s decision – where there will be greater stability and continuity in the child’s life if she remains in Australia – where it is in the best interests of the child to remain in Australia.

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

AIF v AMS (1999) 199 CLR 160
CDJ v VAJ (1998) 197 CLR 172
Cowley & Mendoza (2010) 43 FamLR 436
Donnell & Dovey (2010) 42 FamLR 559
Godfrey & Sanders [2007] FamCA 102
Hardie & Capris [2010] FamCA 1046
In the Marriage of Kress (1976) FLC 90-126
Lythow & Lythow (1976) FLC 90-007
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) 37 FamLR 461
U v U (2002) 211 CLR 238

APPLICANT:

Ms Olsen

RESPONDENT:

Mr Drewery

FILE NUMBER:

BRC

3674

2011

DATE DELIVERED:

13 December 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

14 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bunning

SOLICITOR FOR THE APPLICANT:

Murdoch Lawyers

COUNSEL FOR THE RESPONDENT:

Ms McDiarmid

SOLICITOR FOR THE RESPONDENT:

Springwood Lawyers

Orders

IT IS ORDERED THAT:

Parental Responsibility

The parents shall have equal shared parental responsibility for the child B (“the child”) born … 2008 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended) (“the Act”).
The parents shall each have, during all such time that the child is in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.

Co-Parenting Arrangements as to Time

IT IS DECLARED that, by reason of the mother residing in Country C and the father residing in Australia, neither orders for equal time nor orders for substantial and significant time within the meaning of s 65DAA of the Act are reasonably practicable within the meaning of that section.
The child shall live with, spend time with,…

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 Olsen and Drewery

Details

AGLC: Olsen and Drewery [2011] FamCA 1025
Case: [2011] FamCA 1025
Decision Date: 13 December 2011

CaseChat Overview and Summary

This matter concerned parenting orders made by Murphy J in the Federal Circuit and Family Court of Australia. The dispute involved the parents of a child, B, born in 2008, regarding arrangements for parental responsibility and the child's time with each parent. The mother resided in Country C, while the father resided in Australia, creating geographical challenges for co-parenting.

The court was required to determine the extent of parental responsibility to be shared by the parents, particularly concerning "major long-term issues" as defined by the *Family Law Act 1975* (Cth). Additionally, the court had to assess the practicability of orders for equal time or substantial and significant time, given the international residence of the parents, and establish specific arrangements for the child's time with each parent, including communication and travel. The court also considered the provision of information about the child's health and education between the parents.

Murphy J ordered that the parents share equal parental responsibility for major long-term issues and that each parent would have parental responsibility for issues not classified as major long-term issues while the child was in their care. Crucially, the court declared that due to the mother's residence in Country C and the father's residence in Australia, neither equal time nor substantial and significant time orders were reasonably practicable. Consequently, the child was ordered to live with the father in Australia, with specific provisions for the child to spend time with the mother in either Country C or Australia during school holidays, and detailed arrangements for communication between the child and each parent. The court also made orders for the sharing of information regarding the child's health, education, and welfare, and for both parents to be able to attend the child's extra-curricular activities. All outstanding parenting applications were dismissed.

Orders

Orders of the court

IT IS ORDERED THAT:

Parental Responsibility

The parents shall have equal shared parental responsibility for the child B (“the child”) born … 2008 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended) (“the Act”).

The parents shall each have, during all such time that the child is in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.

Co-Parenting Arrangements as to Time

IT IS DECLARED that, by reason of the mother residing in Country C and the father residing in Australia, neither orders for equal time nor orders for substantial and significant time within the meaning of s 65DAA of the Act are reasonably practicable within the meaning of that section.

The child shall live with, spend time with, and/or communicate with each of her parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these Orders:

(a) The child shall live with the father in Australia;

(b) The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the child to communicate with the mother by telephone and/or Skype (or other such similar forms of communication) each Monday and Thursday between 6.30pm and 7.00pm (Brisbane local time), with the mother to initiate such calls, and at any reasonable time requested by the child.

(i) In either Country C or Australia, at the mother’s election, for the whole of either the June/July Australian school holidays or the September/October Australian school holiday periods with the mother being solely responsible for the cost of the child’s flights, as applicable, and any accompanying adult flights as might be desired or required by airline policy;

(ii) For a period of four weeks in either Country C or Australia, at the mother’s election, during the Queensland December/January school holiday period with the parents being equally responsible for the costs of the child’s flights, as applicable, and any accompanying adult flights as might be desired or required by airline policy; and

(iii) Any such travel during the December/January school holiday period is to include 25 and 26 December each alternate year only.

During any time that the child is absent from Australia in accordance with these Orders, the mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the child to communicate by telephone, ordinary mail, e-mail and Skype (or other such similar forms of communication) with the father each Monday and Thursday between 6.30pm and 7.00pm (Brisbane local time), with the father to initiate such calls, and at any reasonable time requested by the child.

Provision of Information about the Child

Each party shall do all such things and sign all such documents as may be necessary or required to:

(a) Authorise each parent to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom the child consults, failing which this Order shall, of itself, constitute such authority;

(b) Speak to, and receive oral or written communication from, any school or other educational institution, including any day care centres, attended by the child, after payment of any necessary fee, failing which this Order shall, of itself, constitute such authority;

(c) Keep the other parent appraised of their residential address, telephone contact number, and other electronic communication address or addresses for the purpose of communication with the child (such as Skype and email), with any changes to same being notified to the other party within 48 hours of same occurring;

(d) Notify as soon as reasonably practicable the other parent should the child suffer any medical emergency, serious illness, or other significant issue affecting the child’s health or welfare, whilst in their care.

The mother and father shall be at liberty to attend any and all extra-curricular activities undertaken by the child and each party shall do all things and sign all documents reasonably necessary to ensure that the attendance of each parent is authorised.

Dismissal of Other parenting Applications

All outstanding Applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

Other Orders

All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

10.

Pursuant to s 65DA(2) and s 62B of the Act, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.