Price and Barnett - [2008] FMCAfam 589

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRICE & BARNETT

[2008] FMCAfam 589

FAMILY LAW – Child – relocation – parenting orders – best interests of child.

Family Law Act 1975, ss.4, 60B, 60CC, 61DA, 65DAA
Family Law Amendment (Shared Parental Responsibility) Act 2006

M & S [2006] FamCA 1408
Godfrey v Sanders [2007] FamCA 102
A & A; Relocation Approach (2000) FLC 93-035
P v P [2006] FMCAfam 518
Taylor v Barker [2007] FamCA 1246

Applicant:

MR PRICE

Respondent:

MR BARNETT

File Number:

DNC 158 of 2007

Judgment of:

Cameron FM

Hearing dates:

12 – 16 May 2008 & 4 July 2008

Date of Last Submission:

4 July 2008

Delivered at:

Darwin (by video-link from Sydney)

Delivered on:

15 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr C. Black

Counsel for the Respondent:

Ms D. Elliot

Counsel for the Child:

Ms E. Terrill

Solicitors for the Applicant:

Cecil Black

Solicitors for the Respondent:

Northern Territory Legal Aid Commission

Independent Children’s Lawyer

Terrill & Associates

ORDERS

The child [J] born in 2002 live with the mother in Cairns in the State of Queensland.
The mother and father each have equal shared parental responsibility for the child.
Each parent keep the other advised in writing of their residential address and their telephone number.
Each parent notify the other of any serious medical ailment or injury which may afflict the child.
The mother notify the father in writing of the name and address of the school at which the child attends and advise that school of the name and address of the father.
The child spend time with the father as follows:
(a)for three weeks of each Christmas school holidays, being the second half of the 2008/2009 school holidays and each alternate year thereafter, and for the first half of the 2009/2010 school holidays and for each alternate year thereafter;
(b)for the whole of the holidays following the conclusion of the first school term each year;
(c)for the whole of the June/July mid-year school holidays each year;
(d)in Cairns for one weekend each school term provided the father give to the mother 14 days’ notice in writing, such time to commence after school on the Thursday afternoon and to cease at the commencement of school on the following Tuesday; and
(e)in Cairns for the weekend in which Fathers’ Day falls, provided the father give to the mother 14 days’ notice in writing, such time to commence after school on the Friday and to cease at the commencement of school on the following Monday.
For the purposes of:
(a)order 6(a) the father is to arrange and pay for the airfares of the child and an accompanying person and notify the mother of these arrangements in writing 30 days in advance;
(b)orders 6(b) and (c) the mother is to arrange and pay for the airfares of the child and an accompanying person and notify the father in writing of these arrangements 30 days in advance;
(c)orders 6(a), (b) and (c), changeover is to occur in…

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 Price and Barnett

Details

AGLC: Price and Barnett [2008] FMCAfam 589
Case: [2008] FMCAfam 589
Decision Date: 15 July 2008

CaseChat Overview and Summary

Price and Barnett involved a dispute over the custody and care of a child, [J], born in 2002. The parents sought to determine the arrangements for the child’s residence and the allocation of parental responsibilities. The case was heard in the Family Court of Australia.

The central legal issues before the court were the determination of the primary residence of the child, the allocation of parental responsibilities, and the specific arrangements for the child’s time with each parent, including travel logistics, holiday schedules, and contact provisions. The court also had to consider the parents' requests for relocation and the child’s exposure to firearms.

The court ruled that [J] would reside with the mother in Cairns, Queensland, while both parents would share equal parental responsibility. The court set out detailed provisions for the child’s time with the father, including specific holiday periods and contact arrangements. The father was required to arrange and pay for the child's airfares during certain periods, while the mother would do so for others. The court also mandated that the father not expose the child to firearms and established a specific telephone contact schedule. Additionally, the court permitted the mother to relocate to Cairns with the child, subject to certain conditions.

The final orders of the court included specific guidelines for the child's residence, shared parental responsibility, contact arrangements, and relocation provisions, alongside detailed travel and safety instructions.

Orders

Orders of the court

The child [J] born in 2002 live with the mother in Cairns in the State of Queensland.

The mother and father each have equal shared parental responsibility for the child.

Each parent keep the other advised in writing of their residential address and their telephone number.

Each parent notify the other of any serious medical ailment or injury which may afflict the child.

The mother notify the father in writing of the name and address of the school at which the child attends and advise that school of the name and address of the father.

The child spend time with the father as follows:

(a) for three weeks of each Christmas school holidays, being the second half of the 2008/2009 school holidays and each alternate year thereafter, and for the first half of the 2009/2010 school holidays and for each alternate year thereafter;

(b) for the whole of the holidays following the conclusion of the first school term each year;

(d) in Cairns for one weekend each school term provided the father give to the mother 14 days’ notice in writing, such time to commence after school on the Thursday afternoon and to cease at the commencement of school on the following Tuesday; and

(e) in Cairns for the weekend in which Fathers’ Day falls, provided the father give to the mother 14 days’ notice in writing, such time to commence after school on the Friday and to cease at the commencement of school on the following Monday.

For the purposes of:

(a) order 6(a) the father is to arrange and pay for the airfares of the child and an accompanying person and notify the mother of these arrangements in writing 30 days in advance;

(b) orders 6(b) and (c) the mother is to arrange and pay for the airfares of the child and an accompanying person and notify the father in writing of these arrangements 30 days in advance;

(d) orders 6(d) and (e) the father is to collect the child at school at the commencement of the time and deliver her to the school at the conclusion of the time.

The child whilst in the care of the father not be in the vicinity of or exposed to any firearms which are not in storage.

The child have liberal telephone contact with the father on a mobile phone provided by and maintained by the mother between the hours of 3:30pm – 6:00pm on Sundays, Tuesdays and Thursdays.

10.

Until the mother’s relocation to Cairns the father spend time with the child as follows:

(a) each alternative weekend from after school on Friday until the commencement of school on Monday, with the child to be collected by the father at the school at the commencement of the time and delivered to the school on Monday morning (or Tuesday should there be a long weekend);

(b) for the purposes of this time, order 8 does apply and the father is not to conduct his business at his workshop in the presence of the child;

11.

The mother be permitted to relocate to Cairns with the child on or after 19 July 2008.

12.

Those parts of orders 7(a) and (b) which refer to an accompanying person be discharged on the 10th birthday of the child or as otherwise agreed by the parties in writing.

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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