OSBERN & QUINTON - [2020] FamCA 930

FAMILY COURT OF AUSTRALIA

OSBERN & QUINTON

[2020] FamCA 930

FAMILY LAW – CHILDREN – International Relocation – Where the mother seeks to relocate with the children to Canada – Where the father opposes the application – Where the mother’s new partner and their young child are residing in Canada – Where the children are primarily aligned with their mother – Where an order requiring the children to live with the father is untenable – Where the children shall live with the mother and she be permitted to relocate their residence to Canada – Where the two boys will spend block holiday time in Australia with their father and have regular electronic communication with him – Where the daughter will spend time and communicate with the father in accordance with her wishes.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the father seeks equal shared parental responsibility – Where the evidence in this case demonstrates that the parents do not trust or respect each other and do not communicate well at all – Where the mother will have sole parental responsibility with an obligation to consult with the father about her decision.

Family Law Act 1975 (Cth)

Heath v Hemming (No 2) [2011] FamCA 749
U v U (2002) 211 CLR 238

APPLICANT:

Ms Osbern

RESPONDENT:

Mr Quinton

INDEPENDENT CHILDREN’S LAWYER:

Elizabeth Rayment

FILE NUMBER:

BRC

8489

2019

DATE DELIVERED:

5 November 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

12, 13, 14 & 15 May and
6 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Buckley

SOLICITOR FOR THE APPLICANT:

Aylward Game Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Frizelle

SOLICITOR FOR THE RESPONDENT:

A P Hodgson & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Rayment
ELR Law

Orders

That all previous orders and parenting plans be discharged.

Parental Responsibility & Where the Children shall live

That the children, X born … 2007 and Z born … 2010 and Y born … 2012, (“the children”) shall live with the mother and she is permitted to relocate their residence to Canada any time after Monday, 30 November 2020.
That the mother shall have sole parental responsibility for the children.
That when the mother is considering making a decision in relation to a “major long-term issue” in respect of the children (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) the mother shall inform the father in writing of that and seek his views as to the decision to be made and, although she has the sole right to make the decision herself, she shall give due consideration to any views expressed by the father and when she has made any such decision she shall notify the father in writing of that decision within three (3) days of such decision being made, giving her reasons for making that decision at the same time.

Time & Communication

That X shall…

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 OSBERN & QUINTON

Details

AGLC: OSBERN & QUINTON [2020] FamCA 930
Case: [2020] FamCA 930
Decision Date: 5 November 2020

CaseChat Overview and Summary

In *Osbern & Quinton*, the Family Court of Australia considered an application by a mother seeking to relocate with her three children to Canada, where her new partner and their child reside. The father opposed this relocation. The court was required to determine the children's living arrangements and the nature of parental responsibility, given the mother's intention to move overseas and the existing strained relationship between the parents.

The primary legal issues before the court were whether the children should live with the mother and be permitted to relocate to Canada, and the extent of parental responsibility to be allocated between the parents. The court also had to consider the specific arrangements for the children's time with the father and their communication with him, taking into account the children's ages and wishes, particularly those of the daughter.

Forrest J found that an order requiring the children to live with the father was untenable. The court determined that the children should live with the mother and that she be permitted to relocate their residence to Canada. Given the lack of trust and communication between the parents, the mother was granted sole parental responsibility, with an obligation to consult the father on major long-term issues concerning the children. The orders detailed specific arrangements for the boys to spend block holiday time in Australia with their father and for regular electronic communication, while the daughter's time and communication arrangements were to be in accordance with her wishes. The court also made detailed provisions regarding communication between the parents and their conduct towards each other and the children.

Orders

Orders of the court

That all previous orders and parenting plans be discharged.

Parental Responsibility & Where the Children shall live

That the children, X born … 2007 and Z born … 2010 and Y born … 2012, (“the children”) shall live with the mother and she is permitted to relocate their residence to Canada any time after Monday, 30 November 2020.

That the mother shall have sole parental responsibility for the children.

That when the mother is considering making a decision in relation to a “major long-term issue” in respect of the children (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) the mother shall inform the father in writing of that and seek his views as to the decision to be made and, although she has the sole right to make the decision herself, she shall give due consideration to any views expressed by the father and when she has made any such decision she shall notify the father in writing of that decision within three (3) days of such decision being made, giving her reasons for making that decision at the same time.

Time & Communication

That X shall spend time and communicate with the father at all times as may be agreed in accordance with her wishes and the mother shall ensure that any time or communication in accordance with those wishes is facilitated.

That the children, Z and Y, shall spend time and communicate with their father:

(a) commencing 2021 during the Canadian Summer school holiday period for:

(i) at least three whole weeks in 2021 and 2022; and then

(ii) commencing 2023, for four whole weeks each Canadian Summer school holiday period thereafter;

(b) with the mother to book and pay for the return flights for the children and to give the father at least twelve weeks’ written notice of the dates and time on which they will be arriving in Brisbane and leaving Brisbane and to provide the father with a copy of the tickets and itinerary as soon as they become available;

(c) commencing 2021 for up to two whole weeks, during the Canadian Christmas or Spring holiday period (one of those each year) provided that the time is only exercised during the Christmas school holidays in alternate years (with the first year in which it can be the Christmas school holidays to be 2021) and provided that the father gives the mother twelve weeks’ notice of his intention to exercise such time and with the father to book and pay for the return flights for the children and provide the mother with a copy of the tickets and itinerary as soon as they become available;

(d) by Skype (or such other digital platform as the parents may agree upon) each Saturday between 5.00 pm and 6.00 pm (Canadian time) and on the children’s birthdays, the father’s birthday, Australian Father’s Day, Easter Sunday and Christmas Eve at such time as is agreed between the parents but, in default of agreement, then between 5:00 pm and 6:00 pm (Canadian time) on those days, with the father to make these calls.

(e) that while the children are spending holiday time with their father in Australia, they shall communicate with their mother by Skype (or such other digital platform as the parents may agree upon) each Saturday between 5.00 pm and 6.00 pm (Canadian time) and on any of their birthdays, the mother’s birthday, Easter Sunday and Christmas Eve that fall during such holiday time, at such time as is agreed between the parents but, in default of agreement, then between 5:00 pm and 6:00 pm (Canadian time) on those days, with the mother to make these calls.

That changeover for the purposes of time referred to in Order 6 hereof shall take place at Brisbane International Airport or such other place as may be agreed between the parents.

That the father is at liberty to send the children presents for special occasions and the mother shall ensure that the children receive them, save for circumstances where the mother determines, reasonably, that the present is inappropriate and she shall ensure the children write to the father and thank him for them.

Communication between the parents

That the mother shall provide the father with:

(a) a written summary of information concerning the children once each fortnight and that summary shall include an update on the children’s schooling, health and any activities/sports the children are attending as well as photographs of the children; and

(b) a copy of the children’s school reports when received.

10.

That each party shall inform the other, as soon as is practicably possible, in the event that the children experience any serious illness or require significant medical treatment whilst in their respective care.

11.

That the mother and the father shall communicate through the “Our Children” website and are otherwise restrained from passing information or messages through the children to the other parent.

12.

That each of the parents:

(a) shall not criticise or denigrate the other parent or the other parent’s partner or family to, or in the presence or hearing of, the children;

(b) shall encourage and not undermine the children’s relationships with the other parent;

(c) respect the privacy of the other parent and not question the children about the personal life of the other parent and shall speak of the other parent respectfully;

(d) shall refrain from discussing or permitting another person to discuss family law issues, any adult issues and/or any issues in dispute between them with the children; and

(e) shall not show to the children any documents connected with these proceedings.

13.

That each of the parents shall keep the other informed of a postal address, contact telephone number and skype address (or the details at which they can be reached on an otherwise agreed digital video conferencing platform) and shall advise the other of any change to the same within seven (7) days of such change occurring.

14.

That the children are at liberty to have with them during any time they spend with the father, a mobile telephone supplied and paid for by the mother and the father is not to prevent its reasonable use.

15.

That the Independent Children’s Lawyer is discharged.

16.

That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), 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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