Prewett and Mann - [2008] FMCAfam 1523

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PREWETT & MANN

[2008] FMCAfam 1523

FAMILY LAW – Parenting – interim relocation.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

C and S [1998] FamCA 66
Goode & Goode (2006) FLC 93-286
Morgan & Miles [2007] FamCA 1230
Sampson & Hartnett [2007] FamCA 1365

Applicant:

MR PREWETT

Respondent:

MS MANN

File Number:

SYC 645 of 2008

Judgment of:

Altobelli FM

Hearing date:

25 February 2008

Date of Last Submission:

25 February 2008

Delivered at:

Sydney

Delivered on:

25 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr Schonell

Solicitors for the Applicant:

Paul & Paul Lawyers

Counsel for the Respondent:

Mr Serisier

Solicitors for the Respondent:

Swaab Attorneys

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The parents have equal shared parental responsibility for the Child [X], born in 2004 (“the Child”).
The Mother Ms Mann is restrained from:
(a)Relocating the Child to [M] or to any other location outside the Eastern Suburbs of Sydney; and
(b)Enrolling or causing or permitting the continued enrolment and attendance of [X] at any Day Care Centre or pre-school outside the Eastern Suburbs of Sydney; and
the Mother is to do all thing necessary to implement this order no later than 3 March 2008.
In the event the Mother elects to reside in [M] or otherwise outside the Sydney Metropolitan area, [X] live with the Father in Sydney, and spend time with the mother as follows:
(a)Each alternate weekend from 4.00pm on Friday until 11.00am on Monday; with the Mother to collect [X] from the Father at the commencement of such weekend and return [X] to the Father at the conclusion of such weekend;
(b)Each Wednesday at 10.00am to Thursday at 5.00pm (at the Mother’s election) provided that the Mother collect the child from, and return the child to, the Father.
(c)On any further periods agreed between the parents from time to time.
In the event that the Mother elects to return to Sydney and reside in Sydney (mother’s alternative election”) which election shall be evidenced by the mother relinquishing, or otherwise sub-letting, the premises she presently leases in [M] in the Southern Highlands of New South Wales (or as the parties agree) then the child [X], immediately upon the resumption of residence in Sydney, is to spend time with the father on the following basis:
(a)During the first week of the fortnight; from 10.00am Thursday until 5.00pm Friday;
(b)During the second week of the fortnight, from 10.00am Thursday until 10.00am on the following Monday; and
(c)For one week during each of the autumn, winter and spring school holidays in 2008 being the first week of such holidays unless the parties otherwise agree;
(d)For two weeks during the summer school holidays in 2008 being the last two weeks unless the parents otherwise agree;
(e)Where Father’s day falls on a weekend where the Child is not living with the father, the mother shall cause the child to be delivered to the Father at 6.00pm on the Saturday preceding Father’s Day…

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 Prewett and Mann

Details

AGLC: Prewett and Mann [2008] FMCAfam 1523
Case: [2008] FMCAfam 1523
Decision Date: 25 February 2008

CaseChat Overview and Summary

The case of Prewett and Mann was heard by Altobelli FM in the Federal Magistrates Court of Australia. The dispute involved the parents of a child born in 2004, who were seeking orders regarding the child's relocation and parenting arrangements. The primary legal issues the court had to decide were whether the mother could relocate the child to a different location outside Sydney, and what parenting arrangements would be in the child's best interests. The court had to consider the relevant provisions of the Family Law Act 1975 and case law precedents, particularly in relation to interim relocation and shared parental responsibility.

In making its decision, the court considered the relevant legislation, including the objects of the Family Law Act 1975, the presumption of equal shared parental responsibility, and the requirement to consider substantial and significant time. The court also referred to relevant case law, including the Full Court decisions in Goode and Goode, Morgan and Miles, C and S, and Sampson and Hartnett. The court found that the mother had acted unilaterally in relocating the child and enrolling her in a new pre-school without consulting the father. The court also found that there was no evidence of family violence, abuse, or other issues that would impact the child's best interests.

The court weighed the competing proposals of the parents, considering the positives and negatives of each proposal through the lens of the relevant legislation and case law. The court found that the father's proposal had some positives, such as returning the child to her previous circumstances and providing stability, but also had negatives, such as proposing equal time which the court found was not in the child's best interests due to her age and the mother being the primary carer. The court found that the mother's proposal had some positives, such as maintaining the status quo, but also had negatives, such as the potential for the child to have two different educational experiences, substantial travel, and restricted father's time. Ultimately, the court found that the legislation and the child's best interests favoured the father's proposal, except in relation to equal time.

The court made orders for equal shared parental responsibility, restrained the mother from relocating the child outside the eastern suburbs of Sydney, and set out parenting arrangements for the child to live with the father and spend time with the mother, depending on whether the mother returned to Sydney or remained outside the metropolitan area. The court also ordered that the parents consult an appropriately qualified person to advise them about whether the child was developmentally prepared and suitable for pre-school in 2008, and if so for what period each week. The court set a final hearing date for 18 June 2008 and directed the parties to file and serve all affidavits on which they intended to rely at hearing by no later than 4 June 2008. The court emphasised that its interim orders should not be read as indicative of the likely outcome at the final hearing.

Orders