PBC and LMC - [2006] FMCAfam 469

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PBC & LMC

[2006] FMCAfam 469

FAMILY LAW – Parenting – relocation – mother seeks to relocate from Sydney to Brisbane – children 10 and 8 – primary attachment to mother – children currently spending substantial time with father.

Family Law Act 1975

A v A: Relocation Approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
H v W (1995) FLC 92-598
R and R; Children’s Wishes (2000) FLC 93-000
U v U (2002) FLC 93-112

Applicant:

PBC

Respondent:

LMC

File Number:

SYM 3108 of 2006

Judgment of:

Sexton FM

Hearing dates:

24, 25 and 26 July 2006

Date of Last Submission:

26 July 2006

Delivered at:

Sydney

Delivered on:

5 September 2006

REPRESENTATION

Counsel for the Applicant:

Ms S Christie

Solicitors for the Applicant:

Watts McCray

Solicitors for the Respondent:

Andrew A Torok

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The parties have equal shared parental responsibility in relation to the children Jessica age 10 and Sophie age 8 [“the children”].
Each party have sole responsibility for making decisions about other aspects of the care, welfare, development and parental responsibility of the children on a day to day basis during periods when the children are living with either of them.
The mother be restrained from relocating the children’s residence from the Sydney metropolitan area without the prior written consent of the father.
The children live with the mother.
The children live with the father at any time by agreement between the parties, but otherwise:
(a)Each alternate week from Thursday after school or after school care until Monday morning before school (or Tuesday morning if Monday a public holiday);
(b)Each Wednesday in the ‘off’ week from after school or after school care until Thursday morning before school except in the event the father’s residence is more than a 30 minute drive from the children’s school, when the children will be returned to the mother’s residence by no later than 8.00 p.m. on the Wednesday evening and the children will spend that time with the father in the vicinity of the mother’s home;
(c)For the second half of the September school holidays in 2006;
(d)For the Easter period in 2007 and each alternate year thereafter;
(e)For one half of each school holiday period at the end of Terms 1, 2 and 3 being the first half in 2007 and each alternate year thereafter and the second half in 2008 and each alternate year thereafter;
(f)Subject to Order 6(g) herein, for one half of the Christmas school holidays as agreed and failing agreement for the second half commencing in 2006/7 and each alternate year thereafter and for the first half in 2007/8 and each alternate year thereafter;
(g)
Each year from midday on 22 December until midday on

24 December and the children shall spend time with the mother each year from midday on 24 December until midday…

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 PBC and LMC

Details

AGLC: PBC and LMC [2006] FMCAfam 469
Case: [2006] FMCAfam 469
Decision Date: 5 September 2006

CaseChat Overview and Summary

The case of PBC and LMC involved a dispute between the parents, the parties to the case, over the arrangements for their two children, Jessica and Sophie. The case was heard in the Family Court of Australia where the court was required to determine the parenting arrangements for the children in the best interest of the children. The parents had separated, and the dispute centred on the children’s residence, contact, and decision-making responsibilities.

The legal issues that the court had to decide included the allocation of parental responsibility, the residence of the children, the contact arrangements between the children and their father, and the various restrictions and obligations that the parents had towards each other and the children. The court had to consider the best interest of the children as the paramount consideration in making these decisions.

The court decided that the best arrangement for the children was for them to live primarily with their mother, but with significant contact with their father. The court also decided that both parents had equal shared parental responsibility for the children, meaning that both parents had to make joint decisions about the children’s long-term welfare. The court also imposed various restrictions and obligations on the parents, including restrictions on the mother relocating the children and on the father removing the children from school without the mother’s consent. The court also ordered that the parties undertake a post-separation parenting assessment and any further counselling or mediation that may be recommended.

The final orders of the court discharged all previous parenting orders and established the arrangements set out in the order. The parties were required to make the children available for contact with the father on an alternating basis, with specific details about the times and dates of the contact. The orders also included restrictions on the parents’ ability to change the children’s school or remove them from the Sydney metropolitan area for extended periods of time. The court also imposed obligations on the parents to facilitate communication between the children and their father, to provide each other with information about the children’s medical and educational needs, and to refrain from making derogatory comments about each other in the presence of the children.

Orders

Orders of the court

All previous parenting orders be discharged.

The parties have equal shared parental responsibility in relation to the children Jessica age 10 and Sophie age 8 [“the children”].

Each party have sole responsibility for making decisions about other aspects of the care, welfare, development and parental responsibility of the children on a day to day basis during periods when the children are living with either of them.

The mother be restrained from relocating the children’s residence from the Sydney metropolitan area without the prior written consent of the father.

The children live with the mother.

The children live with the father at any time by agreement between the parties, but otherwise:

(a) Each alternate week from Thursday after school or after school care until Monday morning before school (or Tuesday morning if Monday a public holiday);

(b) Each Wednesday in the ‘off’ week from after school or after school care until Thursday morning before school except in the event the father’s residence is more than a 30 minute drive from the children’s school, when the children will be returned to the mother’s residence by no later than 8.00 p.m. on the Wednesday evening and the children will spend that time with the father in the vicinity of the mother’s home;

(d) For the Easter period in 2007 and each alternate year thereafter;

(e) For one half of each school holiday period at the end of Terms 1, 2 and 3 being the first half in 2007 and each alternate year thereafter and the second half in 2008 and each alternate year thereafter;

(f) Subject to Order 6(g) herein, for one half of the Christmas school holidays as agreed and failing agreement for the second half commencing in 2006/7 and each alternate year thereafter and for the first half in 2007/8 and each alternate year thereafter;

(g)

Each year from midday on 22 December until midday on

24 December and the children shall spend time with the mother each year from midday on 24 December until midday on

26 December.

The father cause the fees to be paid for the before/ after school day care for those days relevant to time the children spend with him.

School holidays are defined as commencing from after school on the last day of school term until the first day of school (not being a pupil free day) and changeover during the school holidays shall be at 5.00p.m on the middle day of the holidays and the parties shall have an equal number of nights, but if two middle days, changeover shall occur at 5.00 p.m. on the first of the two middle days.

Each party facilitate the children or either of them telephoning the other parent at any reasonable time.

Each party be restrained from changing the children’s school from KPS until Jessica completes her primary education unless the parties agree otherwise in writing.

Each party be restrained from removing the children from school or allowing either child to be absent from school for reasons other than illness without the other party’s written consent.

Each party be restrained from removing the children from the Sydney metropolitan area for a period of more than 4 days without first providing 7 days written notice to the other party and each party shall provide the other party with an itinerary of their travel outside the Sydney metropolitan area and telephone numbers and addresses where the children can be contacted during that period.

The parties keep each other informed and updated in relation to any medical issues involving the children, including providing each other with the names and full contact details of all medical practitioners attended upon by the children and each party shall provide his/her authority for the other parent to communicate with all medical practitioners attended upon by the children or either child from time to time.

This order be sufficient authority to provide to the father the children’s school reports, dates for sports days, parent/ teacher nights, concerts and other events and/or any other information from the school(s) the children may attend from time to time and that each party be at liberty to attend any and all activities to which parents are invited to attend.

Each party shall keep the other informed at all times of his/her address, landline and mobile telephone number.

Each party shall keep the other informed of any and all extracurricular activities engaged in by the children and each party shall authorise the other to communicate with and obtain copies of all relevant information concerning such extracurricular activities from the organisers of same, and that each party have liberty to attend at all of the children’s extracurricular activities in which they may be involved.

Neither party shall make derogatory comments about the other to the children or to any person in the presence or hearing of the children and each party ensure their only comments about the other parent in the presence or hearing of the children are positive.

Neither party shall include the children in any discussion or decision regarding parental responsibility matters.

Neither party shall take the children out of the Commonwealth of Australia without the written consent of the other party (such consent will not be unreasonably withheld), or an order of a Court of competent jurisdiction.

Each party be restrained from entering the residential property of the other party without that party’s prior consent.

The parties must within 7 days contact Relationships Australia on 1300 364 277 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.

The parties must attend the appointment at any reasonable location nominated by Relationships Australia and complete the assessment.

If assessed as suitable and Relationships Australia nominates counselling, mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.

The father meet all costs associated with the parties’ attendance at Relationships Australia.

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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