P & S - [2005] FMCAfam 198

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & S

[2005] FMCAfam 198

FAMILY LAW – Relocation – child aged six currently in shared care arrangement – shared care arrangement in place since June 2002 – mother wishes to relocate child to B from A S – father wishes to maintain shared care arrangement in A S – evaluation of competing proposals – investigation of outcome independent of parties’ proposals – possibility of father relocating to B – possibility of moratorium in respect of relocation – reasonableness of father seeking to restrict mother’s freedom of movement where possibility exists of his relocation – child equally bonded to both parents – best interests – assessment of contact proposals.

Family Law Act 1975, ss.60B, 65E, 65F(2)
Federal Magistrates Act, s.42

A v A: Relocation Approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
U & U (2002) FLC 93-112
B & B: Family Law Reform Act (1997) FLC 92-755
Fragomeli & Fragomeli (1993) FLC 92-393
T & N [2001] FMCAfam 222
D & SV (2003) FLC 93-137

Applicant:

C M P

Respondent:

B R S

File No:

DNM 2413 of 2002

Delivered on:

29 April 2005

Delivered at:

Darwin

Hearing date:

20 April 2005

Judgment of:

Brown FM

REPRESENTATION

The Applicant in person

The Respondent in person

ORDERS

That after the 1 January 2007 the mother C M P be permitted to relocate the residence of the child of the relationship T J S born 19 December 1998 from A S in the N T of Australia to B in the state of Q.
That until 1 January 2007 the said child live with the mother from 5.00pm on Tuesday of each week until 5.00pm on the following Saturday and live with the father from 5.00pm on Saturday of each week until 5.00pm the following Tuesday.
That the parties retain joint responsibility for making all decision concerning the long term care, welfare and development of the said child.
That in the event that the father B R S moves permanently to an address within a 50 kilometre radius of the B General Post Office by 1 April 2007, the said child live with each of his parents on a week about basis during Q school terms and for one half of each Q school holiday.
In the eventuality that the father elects not to move as specified in order (4) hereof the child live with the mother and the father have contact to the child in A S as follows:
(a)For the first half of each Q school holiday in 2007 and each odd ending year thereafter;
(b)For the second half of each Q school holiday in 2008 and each even ending year thereafter;
(c)By telephone at all reasonable times but on no less than two occasions each week;
(d)At any other times and on any other conditions as may be mutually agreed upon by the parties from time to time.
That the father and mother share 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 P & S

Details

AGLC: P & S [2005] FMCAfam 198
Case: [2005] FMCAfam 198
Decision Date: 29 April 2005

CaseChat Overview and Summary

In the matter of P & S, the Family Court of Australia made a decision regarding the relocation of a child and the terms of parental responsibility and contact. The mother sought to relocate the child from Darwin in the Northern Territory to Brisbane in Queensland, while the father opposed this move. The dispute also involved the division of parental responsibilities and the schedule for contact between the child and the father.

The court was required to determine the relocation of the child, the terms of parental responsibility and decision-making, and the contact arrangements between the child and the father. The court also needed to consider the financial implications of the contact arrangements, including the costs of travel for the child.

In its decision, the court found that the relocation of the child was in the best interest of the child, and therefore, permitted the relocation from 1 January 2007. The court also outlined the terms of parental responsibility and decision-making, including the joint responsibility of both parents for long-term care, welfare, and development of the child. The court determined that the father and mother share the cost of air travel for the child to undertake contact with the father. The court also made orders regarding the day-to-day care of the child and the notification of medical emergencies.

The court made orders for the relocation of the child, the terms of parental responsibility and decision-making, and the contact arrangements between the child and the father. The court also made orders regarding the costs of travel for the child and the notification of medical emergencies.

Orders

Orders of the court

That after the 1 January 2007 the mother C M P be permitted to relocate the residence of the child of the relationship T J S born 19 December 1998 from A S in the N T of Australia to B in the state of Q.

That until 1 January 2007 the said child live with the mother from 5.00pm on Tuesday of each week until 5.00pm on the following Saturday and live with the father from 5.00pm on Saturday of each week until 5.00pm the following Tuesday.

That the parties retain joint responsibility for making all decision concerning the long term care, welfare and development of the said child.

That in the event that the father B R S moves permanently to an address within a 50 kilometre radius of the B General Post Office by 1 April 2007, the said child live with each of his parents on a week about basis during Q school terms and for one half of each Q school holiday.

In the eventuality that the father elects not to move as specified in order (4) hereof the child live with the mother and the father have contact to the child in A S as follows:

(a) For the first half of each Q school holiday in 2007 and each odd ending year thereafter;

(b) For the second half of each Q school holiday in 2008 and each even ending year thereafter;

(d) At any other times and on any other conditions as may be mutually agreed upon by the parties from time to time.

That the father and mother share the cost equally of the air travel for the child to undertake contact as set in order 5 hereof with the father to pay the child’s airfare from B to A S and the mother to pay the child’s return airfare from A S to B at the conclusion of each contact period.

That each of the parties have responsibility for making decisions concerning the day to day care, welfare and development of the said child when he is in his or her respective care.

That the father and mother each keep the other informed of any major illness or accident suffered by the child when in his or her care as soon as is possible after the child is injured or falls ill and keep the other informed of the identity of each treating doctor or like professional attended by the child in the eventuality of accident or illness.

That the parties attend a course of counselling or mediation as directed by the Director of Court Counselling at D to discuss the implementation of these orders and devise strategies to co-parent the said child.

10.

That a copy of these reasons for judgment be provided to Mr R and the Director of Court Counselling at D.

11.

That all outstanding applications are 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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