PENGLETON & FARAM - [2019] FCCA 277

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENGLETON & FARAM

[2019] FCCA 277

Catchwords:
FAMILY LAW – Parenting – school issue amounting to a relocation.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Applicant:

MR PENGLETON

Respondent:

MS FARAM

File Number:

BRC 11319 of 2017

Judgment of:

Judge Howard

Hearing date:

29 January 2019

Date of Last Submission:

29 January 2019

Delivered at:

Brisbane

Delivered on:

12 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr Foley

Solicitors for the Applicant:

Zande Law

The Respondent attending as a self-represented litigant.

ORDERS

That each party shall provide a copy of a proposed Final Order to each other party by no later than 4:00pm on 14 February 2019.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 16 February 2019.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph 2 – each party shall forward a copy of their proposed wording of the Final Order to associate.judgehoward@federalcircuitcourt.gov.au by no later than 4:00pm on 18 February 2019.
That the Court shall issue a Final Order from Chambers or re-list the matter for Mention for the finalisation of the wording of the Final Orders, whichever is appropriate upon review of the drafts forwarded to the Court pursuant to the abovementioned orders.

IT IS NOTED that publication of this judgment under the pseudonym Pengleton & Faram is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11319 of 2017

MR PENGLETON

Applicant

And

MS FARAM

Respondent

REASONS FOR JUDGMENT

Background

The Applicant father is Mr Pengleton. He was born on …1980.
The Respondent mother is Ms Faram. She was born on … 1976.
The parties commenced a relationship in 2011. They started living together in September 2012.
The child, who is the subject of these proceedings, [X] was born on … 2013. The child was born at the Town O Hospital. The parties separated on a final basis in January 2014.
The parties have not been able to agree on final parenting orders in relation to [X].
The father lives in the suburb of Suburb B, Brisbane.
The mother lives in Town C, Queensland. The driving time between the father’s residence in Suburb B and the mother’s residence in Town C is approximately one and a half to two hours (one-way).
After the parties separated on a final basis they reached an agreement whereby [X] commenced living in a week about shared care arrangement from the time that [X] was six months old. This is quite an extraordinary achievement by these parents. It is very rarely the case that parents of such a…

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 PENGLETON & FARAM

Details

AGLC: Pengleton and Faram [2019] FCCA 277
Case: [2019] FCCA 277
Decision Date: 12 February 2019

CaseChat Overview and Summary

In *Pengleton & Faram*, heard by Judge Howard, the dispute concerned parenting arrangements for a child, specifically relating to a school issue that amounted to a relocation. The court was tasked with determining the best interests of the child in light of the parents' differing proposals for the child's primary residence.

The court was required to consider the provisions of section 60CC of the Family Law Act 1975 (Cth), which outlines the factors a court must take into account when determining a child's best interests. This involved assessing both the primary considerations, namely the benefit of a meaningful relationship with both parents, and a range of additional considerations, including the child's expressed preferences (though given little weight due to the child's young age), the child's relationship with extended family and siblings, the parents' ability to make joint decisions, the child's existing living arrangements, the practicalities of maintaining relationships, and each parent's capacity to provide for the child's needs.

Judge Howard's reasoning focused on applying the various subsections of section 60CC to the facts of the case. The court found that the child had a loving and meaningful relationship with both parents, and there was no evidence of harm or neglect. While the child expressed a preference to live with the mother, this was discounted due to the child's age. Significant weight was given to the child's close relationships with her maternal grandparents and her sibling, who lived in Town C, the mother's current location. The court noted that moving the child to Suburb B, the father's location, would constitute a significant change and reduce contact with her maternal family. The practical difficulties and expenses associated with the parents living an hour and forty minutes apart were also acknowledged. Ultimately, the court found that both parents were capable of meeting the child's emotional and intellectual needs and had demonstrated a positive attitude towards their parental responsibilities.

The court made orders requiring the parties to exchange proposed Final Orders by specific dates, with a view to reaching an agreed position. If agreement could not be reached, the parties were to submit their proposed wording to the court. The court indicated it would then issue a Final Order from Chambers or relist the matter for mention to finalise the wording, depending on what was deemed appropriate after reviewing the proposed drafts.

Orders

Orders of the court

That each party shall provide a copy of a proposed Final Order to each other party by no later than 4:00pm on 14 February 2019.

That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 16 February 2019.

That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph 2 – each party shall forward a copy of their proposed wording of the Final Order to associate.judgehoward@federalcircuitcourt.gov.au by no later than 4:00pm on 18 February 2019.

That the Court shall issue a Final Order from Chambers or re-list the matter for Mention for the finalisation of the wording of the Final Orders, whichever is appropriate upon review of the drafts forwarded to the Court pursuant to the abovementioned 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

Section 60CC of the Act sets out how it is that a Court is to determine what is in the child’s best interest. Section 60CC(2) and (2A) state: - Primary considerations (2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and In the circumstances of this case the child does have a loving and meaningful relationship with both of her parents. There is no evidence of any harm or neglect in this family. In section 60CC(3) the additional considerations are listed. Section 60CC(3)(a) – the child has expressed a preference to live with the mother – but the child is very young and her views cannot really be given any weight. In relation to section 60CC(3)(b) – as noted, the child has a close and loving relationship with both of her parents. The child also has a loving relationship with her sibling [L] (the mother’s two-year-old child). [X] is also very close to her maternal grandparents – in particular her maternal grandmother. [X] sees her maternal grandmother every second day in the town of Town C. The maternal grandmother cares for [X] (and [L]) at least one day each week. The child also has a loving relationship with her brother [M] (the father’s child). The child also has a good relationship with the father’s partner (Ms J) and Ms J’s children, [Q] and [R]. In relation to section 60CC(3)(c) – each parent has taken the opportunity to participate in making decisions about long-term issues for the child. Unfortunately they were not able to reach an agreement in relation to where the child should live upon the commencement of the prep year. Both parents have spent as much time as they can with the child and communicated very regularly of the child. Each parent has fulfilled their obligation to maintain the child (section 60CC(3)(ca)). As to section 60CC(3)(d) – it would amount to a significant change for the child if the primary residence was moved from Town C (with her mother) to Suburb B (with her father). The child would also see her maternal grandparents less than she already does at the moment. The same goes for her brother, [L]. There are already practical difficulties and expenses for this child spending time with her parents. This is because the parents live approximately one hour and forty minutes apart. But, of course, it is not an impossible situation. I have no doubt that both parents have the capacity to provide for the child’s emotional and intellectual needs (section 60CC(3)(f)). I have had regard to the young age of the child (60CC(3)(g)). 60CC(3)(h) it is not relevant – at least it has not been drawn my attention. Both parents have displayed an excellent attitude towards the child to the responsibilities of parenthood. Section 60CC(3)(j) and (k) relating to family violence are not applicable. As to section 60CC(3)(l) – it is not especially applicable in this case. 60CC(3)(m) relates to any other fact or circumstances that the Court thinks is relevant. These are addressed below.