FAMILY COURT OF AUSTRALIA
| PYNE & DWIGHT | [2016] FamCA 1070 |
| FAMILY LAW – CHILDREN – relocation – where the mother seeks an order that she be permitted to relocate with the child – where the father opposes the relocation – where consideration is given to the legal principles relevant to relocation proceedings – where consideration is given to departing from the recommendations of the expert – where an order is made for equal shared parental responsibility – where an order is made permitting relocation – where the child is to spend substantial and significant time with the father. |
| Family Law Act 1975 (Cth) s 60CA, 60B, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT, 69ZV, 69ZX |
AMS v AIF (1999) 199 CLR 160
Andrew & Delaine [2009] FamCAFC 182
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
MRR v GR (2010) 240 CLR 461
Starr & Duggan [2009] FamCAFC 115
U v U (2002) 211 CLR 238
Zahawi & Rayne (2016) FamCAFC 90
| APPLICANT: | Ms Pyne |
| RESPONDENT: | Mr Dwight |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
| FILE NUMBER: | PAC | 1938 | of | 2014 |
| DATE DELIVERED: | 13 December 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 21 – 23 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Clifford |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Cook |
| SOLICITOR FOR THE RESPONDENT: | Ark Law Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lioumis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
Orders
That the parties have equal shared parental responsibility for B born … 2008 (“the child”).
That the child shall live with the mother.
That the mother be permitted to relocate to Brisbane with the child in February 2017.
That until the mother and the child relocate the father shall spend time with child as follows:
(a)During the school term, from 6 pm Friday until 5 pm Sunday each alternate weekend commencing the first weekend after the making of these orders;
(b)For one half of the New South Wales (NSW) end of term and Christmas school holidays in 2016/2017 as agreed, and failing agreement, for the second half;
(c)From 9 am on Christmas Eve to 11 am on Christmas Day in 2016;
(d)At other times as may be agreed between the parties.
That upon the mother and the child relocating to Brisbane the child shall spend time with the father in Sydney or in Brisbane as may be nominated by the father as follows:
(a)During the Queensland (Qld) school holidays as agreed between the parties, but failing agreement, as follows:
(i)For ten (10) days to commence on the first day of the school holiday period at the end of the first and third school terms;
(ii)For one half of the second term school holiday period;
(iii)For one half of the Christmas school holiday period being the first half in odd numbered years and the second half in even numbered years;
(b)On the first weekend of February, March,…
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- AGLC
- Pyne and Dwight [2016] FamCA 1070
- Case
- [2016] FamCA 1070
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms of shared parental responsibility, the primary residence of the child, and the practical arrangements for the father's time with the child, both before and after the mother's relocation. This included establishing a detailed schedule for school holidays, weekends, and other significant periods, as well as provisions for communication, travel, and the exchange of information regarding the child's welfare and education.
Berman J ordered that the parties have equal shared parental responsibility for the child. The child was to live with the mother, who was permitted to relocate to Brisbane in February 2017. The court then set out a comprehensive schedule for the father's time with the child, detailing specific arrangements for school terms and holidays, both before and after the relocation. These orders also included provisions for travel arrangements, communication between parents and the child, and the exchange of information concerning the child's health and schooling, with a clear directive against denigration of either parent.
Orders
Orders of the court
1.
That the parties have equal shared parental responsibility for B born … 2008 (“the child”).
2.
That the child shall live with the mother.
3.
That the mother be permitted to relocate to Brisbane with the child in February 2017.
4.
That until the mother and the child relocate the father shall spend time with child as follows:
(a) During the school term, from 6 pm Friday until 5 pm Sunday each alternate weekend commencing the first weekend after the making of these orders;
(b) For one half of the New South Wales (NSW) end of term and Christmas school holidays in 2016/2017 as agreed, and failing agreement, for the second half;
(c) From 9 am on Christmas Eve to 11 am on Christmas Day in 2016;
(d) At other times as may be agreed between the parties.
5.
That upon the mother and the child relocating to Brisbane the child shall spend time with the father in Sydney or in Brisbane as may be nominated by the father as follows:
(a) During the Queensland (Qld) school holidays as agreed between the parties, but failing agreement, as follows:
(i) For ten (10) days to commence on the first day of the school holiday period at the end of the first and third school terms;
(ii) For one half of the second term school holiday period;
(iii) For one half of the Christmas school holiday period being the first half in odd numbered years and the second half in even numbered years;
(b) On the first weekend of February, March, May, June, August, September, October and November as agreed between the parties, but failing agreement, from the first flight available from Brisbane after 5 pm (Qld time) on Friday until the first flight available from Sydney after 5 pm (NSW time) on Sunday;
(c) On the first weekend in December each even numbered year commencing 2018 from the first flight available from Brisbane after 5 pm (Qld time) on Friday until the first flight available from Sydney after 5 pm (NSW time) on Sunday;
(d) On the Queensland Queen’s birthday long weekend in each year as follows:
(i) In the event the Friday is a public holiday, from 9 am Friday until 5 pm Sunday; or
(ii) In the event the Monday is a public holiday, from 9 am Saturday until 5 pm Monday.
6.
That the father be at liberty to spend additional time with the child in Brisbane as may be agreed between the parties and failing agreement on any weekend nominated by him from the conclusion of school on Friday to 5 pm Sunday provided that:
(a) The father gives the mother not less than twenty one (21) days written notice of his intention to exercise such time;
(b) Such time shall not occur during or on the Easter or Christmas periods or the Mother’s Day weekend;
(c) The father shall ensure that the child attends all extra-curricular activities and for this purpose the mother must provide the father with notice of all such activities.
7.
That for the purpose of the father spending time with the child in Sydney pursuant to order 5 the following shall apply:
(a) The child shall travel by return flight between Sydney and Brisbane;
(b) The mother shall be responsible for arranging and paying for the flights for the child and for so long as may be required, and at her election, an accompanying adult. For the purposes of this order the mother shall use any frequent flyer points available to her and the father shall thereafter reimburse the mother by electronic funds transfer into a nominated account 50 per cent of the net cost of the flight travel within fourteen (14) days of the provision by the mother to the father of appropriate tax invoices and evidence of payment by her;
(c) The mother will advise the father of the child’s travel arrangements and in particular as to the time that the child shall be delivered to and collected from the relevant airport and provide the father with the relevant itinerary fourteen (14) days prior to travel;
(d) The mother or her agent shall deliver and collect the child to and from the father or such other adult as may be nominated by him at the Sydney airport at the commencement and the conclusion of the father’s period of time or such other handover point as the parties may agree;
(e) For the purpose of order 7(b) that within fourteen (14) days of the date of these orders the mother shall open up a bank account for the sole purpose of meeting the costs as required of order 7(b) with a minimum balance of $2,000. The mother shall otherwise ensure the balance of such account does not fall below $1,000.
8.
That for the purposes of the father spending time with the child in Brisbane pursuant to these orders the father and or his nominee shall collect and return the child to and from the mother’s residence at the commencement and conclusion of his period of time.
9.
That the parties shall have telephone communication with the child at all reasonable times during the period that the child is not ordinarily spending time with each of them and for the purposes of this order the parties shall facilitate any request the child shall make to telephone either of her parents and will facilitate the making of such telephone calls without restriction as to the duration of such calls noting that the child is in possession of a mobile telephone which each of the parties will ensure is both charged and operational.
10.
That for the purposes of these orders:
(a) The school holiday period shall commence at 9 am on the day after the last day of the required school attendance at the conclusion of term and shall conclude at 5 pm two (2) days prior to the first day of the required school attendance in the next term;
(b) Changeover is to occur at 5 pm on the mid-point day between the first and last day of the defined school holiday period unless otherwise provided.
11.
That neither party shall denigrate the other party or members of the other party’s family to the child in the presence or in the hearing of the child and shall ensure that the child is removed from the presence of any third party who may denigrate the other party or members of the other party’s family.
12.
That the father be at liberty to communicate with the child by telephone or by Skype video conference if available on at least one occasion in each week and for this purpose both parties shall promptly make all reasonable efforts to have Skype facilities available.
13.
That the mother is at liberty to communicate with the child by telephone or by Skype video conference during the periods that the child is spending time with the father, if available, on at least one (1) occasion in each week and for this purpose both parties must make all reasonable efforts to have Skype facilities available.
14.
That both parties shall sign all documents and do all such things as is necessary to authorise and direct any medical, health, developmental, dental, behavioural and counselling professionals treating or otherwise involved with the child’s care to communicate and provide information to each of the parties.
15.
That the mother will do all things necessary to authorise any school in which the child is attending to provide copies of school reports, notices and all other information pertaining to the child’s school attendance provided the provision of any such information including school photographs is at the father’s sole expense.
16.
That each party shall keep the other advised of their residential address and contact details and shall advise the other party in writing no later than seven (7) days prior to any change occurring.
17.
That both parties are granted leave to provide a copy of these orders to any school that the child may attend from time to time.
18.
That each party shall notify the other as soon as reasonably practicable of any accident or emergency involving the child which involves medical treatment or hospitalisation whilst the child is in their separate care.
19.
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 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.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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