Potter and Montague - [2009] FMCAfam 1211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

POTTER & MONTAGUE

[2009] FMCAfam 1211

FAMILY LAW – Relocation – best interests of the child.

Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC (3) (b) – (g), (i), 60CC (4), 65AA, 65DAA, 65DAA (2) – (4)

F v F (2008) 38 Fam LR 52
Goode v Goode (2007) 36 Fam LR 422
Keach & Keach (2007) FLC ¶93-353
Mazorski v Albright (2008) 37 Fam LR 518
McCall & Clark (2009) FLC ¶93-405
Morgan v Miles (2007) 38 Fam LR 275
Rosa & Rosa [2009] FamCAFC 81
Sealey & Archer [2008] FamCAFC 142
SPS & PLS (2008) 217 FLR 164; (2008) 39 Fam LR 295; (2008) FLC ¶93-363
Taylor & Barker (2007) 214 FLR 433; (2007) 37 Fam LR 461; (2007) FLC 93-345

P. Parkinson, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation” (2008) 36 Federal Law Review 145

Applicant:

MR POTTER

Respondent:

MS MONTAGUE

File Number:

CAC 1084 of 2008

Judgment of:

Neville FM

Hearing dates:

10 & 11 November 2008, 30 March 2009, 25 June 2009

Date of Last Submission:

17 July 2009

Delivered at:

Canberra

Delivered on:

27 November 2009

REPRESENTATION

Counsel for the Applicant &
Advocate for the Applicant:

Ms Tonkin
Ms Strong

Solicitors for the Applicant:

Lessli Strong & Associates

Counsel for the Respondent:

Ms Godtschalk

Solicitors for the Respondent:

Ken Cush & Associates

ORDERS

That the Mother and Father have equal shared parental responsibility for [X] born [in] 2000.

That in the event that the Mother remains living in Canberra:

Save for Orders 3 and 4 hereof, [X] will live with her Father from after school or day care on Friday until before school or day care the following Friday and each alternate week thereafter and with her Mother from after school or day care on Friday until before school or day care and each alternate week thereafter.
[X] will live with her Father for half of the Christmas/Summer school holidays being the first half in the years ending in an even number and the second half in the years ending in an odd number and will live with her Mother for half of the Christmas/Summer school holidays being the second half in the years ending in an even number and the first half in the years ending in an odd number.
[X] will spend Mother’s Day with her Mother from 9:00am to 5:00pm and Father’s Day with her Father from 9:00am to 5:00pm.

That in the event that the Mother relocates to [B]:

(a)[X] will live with her Father.
(b)[X] will spend time with her Mother as follows:
(i)For two out of three weekends with the Mother to collect [X] after school or day care in Canberra at the commencement of contact and the Father to collect [X] from the Mother’s home in [B] on Sunday afternoon at 4:30pm during daylight saving time and 3:30 pm during eastern standard time at the conclusion of contact;
(ii)On…

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 Potter and Montague

Details

AGLC: Potter and Montague [2009] FMCAfam 1211
Case: [2009] FMCAfam 1211
Decision Date: 27 November 2009

CaseChat Overview and Summary

Potter and Montague was a family law matter in the Federal Circuit Court of Australia. The case involved a dispute between the parents of a child born in 2000, concerning the allocation of parental responsibilities and the time the child should spend with each parent. The mother resided in Canberra while the father lived in another jurisdiction. The parents disagreed on the proposed parenting arrangements for their child, which necessitated a court determination.

The court had to decide on the allocation of parental responsibility and the specific time arrangements for the child, considering the best interests of the child. This included determining the primary residence of the child, the schedule for alternating time with each parent, the allocation of school holiday time, and the arrangements for special days such as Mother's Day and Father's Day. Additionally, the court had to consider potential changes to the arrangements should the mother relocate.

The court found that both parents should have equal shared parental responsibility for the child. Given the mother's current residence in Canberra, the court ordered that the child would live with the father from after school on Friday until before school the following Friday and alternate weeks thereafter, while living with the mother otherwise. For school holidays, the child would spend half of the Christmas and summer holidays with each parent, alternating the first half of the holidays in even-numbered years and the second half in odd-numbered years. The child would also spend Mother’s Day with the mother and Father’s Day with the father. In the event of the mother relocating, the court ordered that the child would live with the father and have specified visitation with the mother, including two out of three weekends for collection from school in Canberra and return to the father in the new location. The court also allowed for contact by telephone, email, and webcam at reasonable times.

Orders

Orders of the court

That the Mother and Father have equal shared parental responsibility for [X] born [in] 2000.

That in the event that the Mother remains living in Canberra:

Save for Orders 3 and 4 hereof, [X] will live with her Father from after school or day care on Friday until before school or day care the following Friday and each alternate week thereafter and with her Mother from after school or day care on Friday until before school or day care and each alternate week thereafter.

[X] will live with her Father for half of the Christmas/Summer school holidays being the first half in the years ending in an even number and the second half in the years ending in an odd number and will live with her Mother for half of the Christmas/Summer school holidays being the second half in the years ending in an even number and the first half in the years ending in an odd number.

[X] will spend Mother’s Day with her Mother from 9:00am to 5:00pm and Father’s Day with her Father from 9:00am to 5:00pm.

That in the event that the Mother relocates to [B]:

(a) [X] will live with her Father.

(b) [X] will spend time with her Mother as follows:

(i) For two out of three weekends with the Mother to collect [X] after school or day care in Canberra at the commencement of contact and the Father to collect [X] from the Mother’s home in [B] on Sunday afternoon at 4:30pm during daylight saving time and 3:30 pm during eastern standard time at the conclusion of contact;

(ii) On Mother’s Day with changeover as agreed in writing between the parties;

(iii) By telephone, email and webcam at any reasonable time.

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

Full text does not contain this section.