FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & P | [2006] FMCA fam 518 |
| FAMILY LAW – Child aged 3 – planned relocation of child from D to A – child has lived with mother since separation – mother wishes to live in A – father seeks to restrain mother from leaving D – “meaningful” relationships with both parents – freedom of movement – whether reasonably practicable to restrain mother indefinitely – examination of possibility of father moving – practical considerations – moratorium on relocation considered – Property – few assets to be divided – allocation of debts – consequences of bankruptcy – just and equitable. |
| Family Law Act 1975 – ss.60B, 60CA, 60CC, 61DA, 64B, 65DAA, 75, 79 |
| U & U [2002] FLC 93-112 Lee Steere v Lee Steere (1998) FLC 91-626 Ferraro v Ferraro (1993) FLC 92-335 |
| Applicant: | R J P |
| Respondent: | J O P |
| File No: | DNM475 of 2005 |
| Delivered on: | 16 October 2006 |
| Delivered at: | D |
| Hearing dates: | 28 & 29 September 2006 |
| Judgment of: | Brown FM |
REPRESENTATION
| The Applicant in person: | Mr R P |
| Counsel for the Respondent: | Ms Dibden |
| Solicitors for the Respondent: | Davis Norman |
ORDERS
(1)The parties have e qual shared parental responsibility for the child of the marriage T W P born 22 October 2003 (hereinafter referred to as “the child”).
(2)The child live with the mother.
(3)The mother be permitted to live with the child in A in the state of S A from 1 December 2007 onwards provided the mother and the child move to A prior to 15 January 2008 and the mother advises the father in writing of the date of her departure with the child from D 28 days prior to it occurring.
(4)Until 1 December 2007 the mother is restrained and an injunction issues restraining her from moving the place of residence of the child from an area within the municipal boundaries of the Cities of D and P and the S of L in the N T of Australia.
(5)Prior to the mother’s departure from D, as envisaged by order 3 hereof, the father spend time with the child as follows:
(a)On alternate weekends from 5.00pm on Friday until 5.00pm the following Sunday (or 5.00pm the following Monday in the event that Monday is a public holiday);
(b)Between 4.30pm and 7.30pm on each Wednesday and Friday;
(c)On Father’s Day, the child’s birthday, the father’s birthday and on any other special occasions at times to be agreed between the parties and failing agreement to be for at least three hours between 4.30pm and…
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- P & P [2006] FMCAfam 518
- Case
- [2006] FMCAfam 518
- Decision Date
CaseChat Overview and Summary
The court had to determine several key legal issues, including the allocation of parental responsibilities, the specific visitation arrangements, the child's place of residence, and the division of property and superannuation. The court also needed to address the parties' ability to relocate, the child's travel arrangements, and the method of communication between the child and the non-resident parent.
In reaching its decision, the court considered the welfare and best interests of the child as the paramount concern. The court allocated equal shared parental responsibility between the parties and decided that the child should live with the mother. The father was granted specific visitation rights, including regular weekend and weekday visits, as well as special occasions. The court also set out detailed conditions for the mother's relocation and outlined the financial responsibilities for travel and communication. Furthermore, the court ordered the division of property, including the transfer of ownership of a specified property and the allocation of a base amount from the husband's superannuation.
The court issued comprehensive orders to ensure the child's well-being and to facilitate the parents' shared responsibilities. These orders included stipulations on the child's residence, visitation schedules, communication methods, and financial obligations. The court also addressed the division of property and superannuation, ensuring equitable distribution between the parties.
Orders
Orders of the court
(1) The parties have e qual shared parental responsibility for the child of the marriage T W P born 22 October 2003 (hereinafter referred to as “the child”).
(2) The child live with the mother.
(3) The mother be permitted to live with the child in A in the state of S A from 1 December 2007 onwards provided the mother and the child move to A prior to 15 January 2008 and the mother advises the father in writing of the date of her departure with the child from D 28 days prior to it occurring.
(4) Until 1 December 2007 the mother is restrained and an injunction issues restraining her from moving the place of residence of the child from an area within the municipal boundaries of the Cities of D and P and the S of L in the N T of Australia.
(5) Prior to the mother’s departure from D, as envisaged by order 3 hereof, the father spend time with the child as follows:
(a) On alternate weekends from 5.00pm on Friday until 5.00pm the following Sunday (or 5.00pm the following Monday in the event that Monday is a public holiday);
(b) Between 4.30pm and 7.30pm on each Wednesday and Friday;
(c) On Father’s Day, the child’s birthday, the father’s birthday and on any other special occasions at times to be agreed between the parties and failing agreement to be for at least three hours between 4.30pm and 7.30pm;
(d) From midday on Christmas Eve 2006 until midday on Christmas Day 2006 and each even ending year thereafter and from midday on Christmas Day 2007 until midday on Boxing Day 2007 and each odd ending year thereafter;
(e) At any other times and on any other conditions as the parties may agree from time to time.
(6) The mother is at liberty to take the child with her on two holidays interstate each year of up to 14 days duration each provided she gives the father 28 days written notice of her intention in this regard and provides him with an itinerary and details by means of which the father will be able to communicate with the child by telephone and during such holiday periods order 5(a) to (c) hereof is suspended. However no such holiday is to coincide with 24, 25 and 26 December without the father’s consent.
(7) In the event the father elects to move to live in A permanently, after the mother and child have moved to live in A pursuant to order 3 hereof, the father shall continue to spend time with the child in accordance with order 5 hereof but upon the child commencing primary school, in addition to the time specified in order 5 hereof, the father will spend time with the child as follows:
(a) For half of each S A school period the halves to be agreed between the parties and failing agreement to be the first half in even ending years and the second half in odd ending years.
(8) In the event that the father does not live in A, after the mother and child have relocated to A pursuant to order 3 hereof, the father shall spend time with the child as follows:
Until the child reaches 5 years of age:
(a) In A for a period of one week on at least 4 occasions each year with the father giving the mother 21 days notice in writing of his intention to spend time with the child;
(b) At any other times and on any other conditions as the parties may agree from time to time.
After the child reaches 5 years of age:
(c) In D or such other location within Australia as the father nominates for half of each S A school holiday period the halves to be agreed between the parties and failing agreement to be the first half in even ending years and the second half in odd ending years;
(d) At any other times and on any other conditions as the parties may agree from time to time.
(9) The parties be equally responsible for the costs of travel involved in the child travelling between A, D or such other location within Australia nominated by the father for the purpose of the child spending time with the father pursuant to order 8(c) hereof.
(10) In the event the mother wishes the child to be accompanied by an adult, for the purpose of the travel provided by order 8(c) hereof, she will be responsible for the cost of the accompanying adult’s airfares and for making all necessary arrangements in respect of same.
(11) The father communicate with the child on his relocation to A pursuant to order 3 hereof as follows:
(a) Liberally by telephone and on no less than two occasions each week, the occasions to be agreed between the parties and failing agreement to be each Tuesday and Sunday at 6.30pm the time to be calculated by reference to the time zone in which the child ordinarily lives;
(b) By email and ordinary post;
(c) On a daily basis by webcam.
(12) Each party keep the other informed of his or her residential address and contact details, including email addresses and landline and mobile telephone numbers at all times and advise the other of any change occurring to these details within 3 days of such change occurring.
(13) In the event that the child is hospitalized or suffers any illness or accident requiring medical treatment when in the care of either of the parties that party shall inform the other parent of such illness or accident as soon as is reasonably practicable and advise the other of the name of the treating doctor or hospital concerned.
(14) If either party travels away with the child from his or her normal place of abode during any school holiday period he or she shall provide the other no less than 7 days prior to the date of departure an itinerary including dates of departure and return, details of any air travel involved and contact details for the child.
(15) The parties be at liberty to attend at the child’s school for the purpose of attending any activity or occasion routinely attended by parents and for the purpose of discussing the child’s academic progress with the relevant teaching staff concerned.
(16) The parties are given liberty to relist this matter before Federal Magistrate Brown, on the giving of 28 days written notice to the other party, in regards to any provision of these orders dealing with the father spending time with the child, in the event that the father elects either to live or not to live in A after
1 December 2007, once the father has decided which course he proposes to take.
(17) That the wife transfer forthwith to the husband, at the husband’s expense, the whole of her right, title and interest in the property known as 2 I W, K R, N S W.
(18) That upon the transfer of the property referred to in order 17 hereof the husband shall indemnify the wife and keep her indemnified in respect of the mortgage secured against the aforesaid property and all other outgoings related to it.
(19) In the event the husband or wife fails to execute any required document to give effect to order 17 and 18 hereof pursuant to section 106A of the Family Law Act 1975 the Registrar of the Court at D be authorized to execute any necessary deed, document or instrument in their place.
(20) That pursuant to section 90MT(4) of the Family Law Act 1975 a base amount of $16,000.00 be allocated to the wife in respect of the husband’s superannuation interest in the J H Superannuation Fund and that pursuant to section 90MT(1)(a) whenever a splittable payment becomes payable in respect of that interest the wife is entitled to be paid the amount to be calculated in accordance with the Family Law (Superannuation) Regulations 2001 in respect of that base amount and there is a corresponding reduction in the entitlement of the husband.
(21) The solicitor for the wife serve a copy of order 20 hereof on the Trustee of the J H Superannuation Fund by 27 October 2006 and thereafter the aforesaid Trustee has liberty to re-list this matter before the court in the event that the Trustee is unable to comply with order 20 hereof but otherwise the operative time for the aforementioned splitting order shall be 17 November 2006.
(22) That the trustee of the J H Superannuation Fund, the husband and the wife in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all such documents as may be necessary to calculate the payment entitlement of the wife in accordance with order 19 hereof.
(23) That unless otherwise specified in these orders, each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of each party and superannuation standing in the name of each party as at this date.
(24) The applications be otherwise dismissed.
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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