Peters and Peters - [2009] FMCAfam 415

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PETERS & PETERS

[2009] FMCAfam 415

FAMILY LAW – Parenting – relocation – mother seeks to relocate with children to New South Wales – children aged 12 and 15 – children’s views – children’s best interests.

Family Law Act 1975, ss.60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 64B, 65DAA, 65DAA(2), 65DAA(3), 65DAA(4), 65DAA(5)

DIH & MJH (No. 3) [2005] FMCAfam 501
Garvey v Eccles [2008] FMCAfam 1218
Godfrey v Sanders (2007) 208 FLR 287
In the Marriage of Hall (1979) 5 Fam LR 609
Morgan v Miles (2007) Fam LR 275
R & R: Children’s Wishes (2000) 25 Fam LR 712
Silas & Barry (2009) FMCAfam 448

Applicant:

MR PETERS

Respondent:

MS PETERS

File Number:

MLC9397 of 2008

Judgment of:

Monahan FM

Hearing date:

16 February 2009

Date of Last Submission:

17 February 2009

Delivered at:

Melbourne

Delivered on:

22 June 2009

REPRESENTATION

Counsel for the Applicant:

Ms Agresta

Solicitors for the Applicant:

Pearsons Barristers & Solicitors

Counsel for the Respondent:

Ms Stewart

Solicitors for the Respondent:

Aitken Partners Pty Ltd

ORDERS

All previous Parenting Orders be discharged.
That the parties have equal shared parental responsibility for the children, [X] born in 1994 and [Y] born in 1997 (“the Children”).
That the Wife be permitted to move with the Children, to Sydney in the State of New South Wales from 19 July 2009. For the purpose of this travel the Husband will deliver the children to the home of the Wife’s parents at [address omitted], at 7:30pm on Saturday 18 July 2009. The Wife shall be responsible for the children’s costs for this flight.
That the Children live with the Wife and each party have responsibility concerning other aspects of the care, welfare and development of the Children when they are with that party.
That the Children spend time with the Husband as follows:
(a)For one weekend (being Friday to Sunday, or, if the adjacent Friday or Monday is a non-school day in New South Wales, beginning on Thursday or ending on Monday as applicable) per month at the times set out in the schedule marked “A” (excluding any such times which conflict with school holidays), and thereafter unless agreed otherwise, on the first weekend of each calendar month (being Friday to Sunday, or, if the adjacent Friday or Monday is a non-school day in New South Wales, beginning on Thursday or ending on Monday as applicable and to avoid confusion this means the relevant weekend starts when or after the calendar month does);
(b)The Husband may also travel to Sydney to spend time with the Children at his own expense on the weekend (being Friday to Sunday, or, if the adjacent Friday or Monday is a non-school day in New South Wales, beginning on Thursday or ending on Monday as applicable) fourteen days after the times set out in the schedule marked “A” (excluding any such times which conflict with school holidays), upon fourteen days’ notice (the husband supporting any school activities occurring at…

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 Peters and Peters

Details

AGLC: Peters and Peters [2009] FMCAfam 415
Case: [2009] FMCAfam 415
Decision Date: 22 June 2009

CaseChat Overview and Summary

The case of Peters and Peters involves a dispute between the husband and wife regarding the parenting arrangements for their two children, [X] and [Y]. The matter was heard in the Family Court of Australia. The primary concern was the determination of the parenting orders, which included the allocation of parental responsibility, living arrangements, and visitation schedules.

The court was required to address several key legal issues, including the allocation of shared parental responsibility, the primary residence of the children, the visitation rights of the non-resident parent, and the logistical details of the children's travel and communication with both parents. Additionally, the court had to consider the children's educational needs and the need for ongoing communication between the parents regarding the children's welfare.

The court ruled that both parents would have equal shared parental responsibility for the children. The children would primarily reside with the wife, with the husband having specified visitation rights. The husband was allowed to travel to Sydney to spend time with the children under certain conditions. The court also detailed the specific times and conditions for the children's travel, including the responsibilities of each parent for arranging and paying for flights. Communication between the children and their parents was to be maintained through various means, including video calls, emails, and other forms of communication. Both parents were required to facilitate the children's educational needs and to keep each other informed about the children's activities and health.

The court's decision included specific orders for the children's relocation to Sydney, their school enrollment, and the arrangements for the children's travel and communication with both parents. The court also emphasised the importance of the parents not denigrating each other in front of the children and the need for family dispute resolution if the parents could not agree on the children's long-term care. The court attached a fact sheet detailing the obligations and consequences of non-compliance with the orders.

Orders

Orders of the court

All previous Parenting Orders be discharged.

That the parties have equal shared parental responsibility for the children, [X] born in 1994 and [Y] born in 1997 (“the Children”).

That the Wife be permitted to move with the Children, to Sydney in the State of New South Wales from 19 July 2009. For the purpose of this travel the Husband will deliver the children to the home of the Wife’s parents at [address omitted], at 7:30pm on Saturday 18 July 2009. The Wife shall be responsible for the children’s costs for this flight.

That the Children live with the Wife and each party have responsibility concerning other aspects of the care, welfare and development of the Children when they are with that party.

That the Children spend time with the Husband as follows:

(a) For one weekend (being Friday to Sunday, or, if the adjacent Friday or Monday is a non-school day in New South Wales, beginning on Thursday or ending on Monday as applicable) per month at the times set out in the schedule marked “A” (excluding any such times which conflict with school holidays), and thereafter unless agreed otherwise, on the first weekend of each calendar month (being Friday to Sunday, or, if the adjacent Friday or Monday is a non-school day in New South Wales, beginning on Thursday or ending on Monday as applicable and to avoid confusion this means the relevant weekend starts when or after the calendar month does);

(b) The Husband may also travel to Sydney to spend time with the Children at his own expense on the weekend (being Friday to Sunday, or, if the adjacent Friday or Monday is a non-school day in New South Wales, beginning on Thursday or ending on Monday as applicable) fourteen days after the times set out in the schedule marked “A” (excluding any such times which conflict with school holidays), upon fourteen days’ notice (the husband supporting any school activities occurring at such times);

(d) From 5 to 18 July 2009;

(e) Commencing with the school holidays after third term in 2009, for the first half of all New South Wales school holiday periods excluding the long summer school holidays;

(f) In the New South Wales long summer school holidays:

(i) Commencing in 2009 (which shall be taken to be in the year when Christmas falls even though some of those holidays will take place in January the following year) and each alternate year thereafter, for the first half; and

(ii) Commencing in 2010 (which shall be taken to be in the year when Christmas falls even though some of those holidays will take place in January the following year) and each alternate year thereafter, for the second half.

(g) Otherwise at such times and locations as agreed in writing (including by email or SMS), without the need for fourteen days’ notice.

That for the purposes of the above parenting arrangements:

(a) Changeover take place between 7:00pm and 9:00pm being the time the children arrive at the arrival gate of the destination airport;

(b) The specific time for changeover be determined by the party who has arranged the flight contacting the other parent, no less than one week before the time of the flight, to provide:

(i) The relevant flight numbers; and

(ii) The estimated time, at the time of booking, for which the children’s flight arrives in and leaves from the city of the other party’s residence;

(c) For clarification, flights to Tullamarine airport be treated as flights to Melbourne and flights to Mascot airport be treated as flights to Sydney;

(d) It is the responsibility of the parent ending their time with the Children to take the children to the applicable airport to ensure they arrive in time for their flight;

(e) It is the responsibility of the parent beginning their time with the Children to make themselves available at the applicable airport to collect the Children at the flight’s estimated time of arrival;

(f) The Wife arrange and pay for the flight costs of the children travelling in accordance with orders 5(a), 5(e) and 5(f) to Melbourne, such payment to be made at least 7 days prior to travel save as otherwise agreed between the parties;

(g) The Husband arrange and pay for the flight costs of the children travelling in accordance with orders 5(a), 5(e) and 5(f) from Melbourne, such payment to be made at least 7 days prior to travel save as otherwise agreed between the parties; and

(h) The Wife may accompany the children for the initial six flights, and every second flight for a further six flights or otherwise as agreed between the parties.

That communication with the children can include the use of individual mobile telephones for each child (to be paid for by the parent providing them), internet video messaging, internet telephony, landline, email and other media where applicable and appropriate. Specifically communication shall take place:

(a) At least twice weekly, including one video communication for a period of up to two hours (via internet);

(b) On the birthdays of that child and the absent parent; and

That both parties do all things necessary to approve the children’s school’s release to the other parent of relevant school notices, reports and parent-teacher interviews.

That both parties make reasonable efforts for joint parent/teacher interviews with the Children’s school or schools to be conducted by teleconference.

10.

Both parties shall do all things necessary to keep the other informed about the children’s activities, health, education and development (preferably through the use of a communication book or electronic equivalent).

11.

That the wife provide all sufficient quality and suitable clothing accessories and footwear for the children during their time with the Husband up to the limit of standard airline carry-on baggage for each child.

12.

Each party shall immediately notify the other of a serious illness, injury, incident or accident involving either of the children whilst in their care.

13.

Neither party denigrate the other in the presence of the children.

14.

If the parties are unable to reach agreement regarding the children’s long term care, welfare and development both parties participate in family dispute resolution counselling.

15.

If either party wishes to travel overseas with the Children during their time with the Children:

(a) The party who wishes to travel notify the other party in writing at least two months prior to the travel;

(b) The costs of the holiday, including flight costs, be met by the party who wishes to travel;

(c) That party provide an itinerary to the other party setting out telephone contact details and accommodation for each night of the holiday; and

(d) Upon provision of such information the other party forthwith sign all documents necessary to arrange for Visas and passports to approve such travel for the Children.

16.

If [X] expresses a wish to either parent to relocate to the other parent’s residence, then both parents are to do all things necessary to ensure that:

(a) [X] discuss the relocation with each parent in person;

(b) Two weeks after the latter of such discussions [X] shall contact both parents to confirm whether or not she still holds such wishes; and

(c) If she advises both parents that she does hold the same wishes, both parents do all things necessary to facilitate such relocation.

17.

All pending Applications and Responses are removed from the list.

18.

Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A. It is the intention of the parties that the children commence school at [B] High School, Sydney in the third term of 2009.

B. If, at the time of either child’s birthday or Christmas Day, the parent not normally with the child or children at that time (“the absent parent”) is to be in her or their vicinity, then upon reasonable notice and the relevant child or children being agreeable, both parties intend, if possible, the absent parent spending time on that day with the relevant child or children.

C. It is the intention of the parties that the dates set out at Schedule “A” synchronise with the current cycle. It is the intention of the parties that the synchronisation continues and within one month of publication of New South Wales School holidays for the years 2013 to 2015 both parties intend to do all things necessary to agree to synchronised monthly weekend times for each relevant school year.

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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