FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAY & SANCHEZ | [2011] FMCAfam 1395 |
| FAMILY LAW – Parenting – principles to be applied to parenting matters including proposed relocation – intrastate relocation – issues of practicality – best interest considerations – relevant evidence in relation to Mother’s isolation and lack of support. FAMILY LAW – Property – modest length relationship – weight to initial contributions – young child to live with Mother – s.75(2) factors. |
| Evidence Act 1995 (Cth), ss.131(2)(d), (g), (i) Family Law Act1975 (Cth) ss.60B, 60CA, 60CC(1)-(3), 61DA, 65DAA(1)-(5), 75(2), 79(2) |
| Ahcraft v Haber [2010] FamCA 6 B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context, (Melbourne: Oxford University Press, 2008) J. Behrens, “U v U: The High Court on Relocation,” (2003) 27 Melbourne University Law Review 572 |
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- AGLC
- RAY & SANCHEZ [2011] FMCAfam 1395
- Case
- [2011] FMCAfam 1395
- Decision Date
CaseChat Overview and Summary
The court examined the evidence presented, including the mother's concerns about her isolation and lack of support in the current location. It concluded that the proposed relocation to Sydney would not significantly impact the child's ability to maintain a relationship with the father. The court found that the relocation would be in the child's best interests, considering the practical benefits and the mother's need for a support network. The court also addressed the property division, recognising the mother's initial contributions and the need for the child to live with her. The court ordered that the property in the Australian Capital Territory be transferred to the mother, while the property in New South Wales be transferred to the father, with provisions for mortgage indemnification and personal property distribution. The court also made detailed orders regarding parenting arrangements and financial contributions.
The court's reasoning led to the conclusion that the child should live with the mother, with specific arrangements for the father to maintain a relationship through visitation and communication. The court permitted the mother to relocate to Sydney, but not before 1 July 2012, to allow for the necessary adjustments. The court ordered both parties to attend a parenting course, with a focus on communication, and made specific provisions for the child's time with each parent before and after the relocation. The court also ordered the payment of a financial sum by the wife to the husband and detailed the transfer of properties, with conditions for mortgage and personal property distribution.
The final orders of the court included equal shared parental responsibility for the child, with the child living with the mother. The mother was permitted to relocate to Sydney, with specific timelines and conditions for the relocation. The court detailed the parenting arrangements for the child before and after the relocation, including visitation and communication with the father. The court also made specific orders for the division of property, personal items, and financial contributions, ensuring that both parties were indemnified against mortgage liabilities. The orders also included provisions for the execution of necessary documents and the binding nature of the orders on the parties' heirs and assigns.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for the child [X] born [in] 2009 (‘the child’).
2.
The child live with the Mother.
3.
The Mother be permitted to relocate to Sydney, New South Wales. The Mother is not permitted to relocate before 1st July 2012.
4.
Both parties enrol in and attend upon a parenting course with a focus on communication. The Mother is to complete such a course prior to relocation.
5.
Prior to relocation, parenting arrangements will be as follows:
(a) For the next three months, there should be no change in arrangements.
(b) For the following three months (and until the Mother and the child relocate to Sydney), the child should move to a 5/9 arrangement in favour of the Mother. During the time that the child is with her Mother, in the absence of agreement, there should be one ‘Skype session’ with the Father per week, the times for which are to be negotiated between the parties.
6.
Upon relocation, the child spend time with the Father as follows:
(a) Each alternate weekend from Friday until Monday, at times to be agreed between the parties and failing agreement, from 4:00pm on Friday until 9:00am on Monday.
(b) Such additional and alternative times as agreed between the parties;
(c) Once the child commences school, for one half of all school holidays except for the Christmas holidays, when the child will spend a pattern of time with each of the parents as agreed which will constitute one half of the holidays.
(d) In the absence of agreement, there should be one ‘Skype session’ with the Father per week, the times for which are to be negotiated between the parties.
7.
For the purpose of Order 6 above, the Mother and Father will meet at a mutually agreed time and location.
8.
Within 60 days of the date of these Orders, the Wife pay the Husband the sum of $95,321.00.
9.
Within 60 days of the date of these Orders, the parties join and do all acts and things and sign all documents necessary in order to effect the transfer of the property situated at and known as Property D, [D], in the Australian Capital Territory being all the piece or parcel of land contained in certificate of title [omitted], to the Wife.
10.
Simultaneous with Order 9, the Wife will transfer into her name or discharge the mortgage registered against the [D] property and indemnify the Husband and keep him indemnified with respect to that liability.
11.
In the event that the [D] property is not kept pursuant to these orders, it is to be sold and the net proceeds are to be divided 54% to the Husband and 46% to the Wife.
12.
Simultaneous with the settlement of the transfer of the [D] property pursuant to Order 9, both parties will join and do all acts and sign all documents as may be necessary in order to effect the transfer of the property situated at Property G, [G], New South Wales being all of the piece and parcel of land contained in certificate of title [omitted], to the Husband.
13.
Simultaneous with Order 12, the Husband will transfer into his name or discharge the mortgage registered against the [G] property and indemnify the Wife and keep her indemnified with respect to that liability.
14.
Within 7 days of the date of these Orders, the Wife make available for collection by the Husband his personal items and contents in the matrimonial home.
15.
That unless otherwise provided in these Orders, each party be declared the sole and absolute owner to all items of personal property, furniture and effects in the name of that party or in the possession of that party at that date of these Orders, including but not limited to bank accounts, shares, life insurance policies, motor vehicles and entitlements to superannuation.
16.
Subject to these Orders, each party be solely responsible for all liabilities in their name as at the date of these Orders and indemnify the other party and keep them indemnified with respect to those liabilities.
17.
As provided by section 106(A) of the Family Law Act 1975, if either party refuses to or neglects to comply with the direction to execute any deed, documents, instrument or writing to give effect to these orders within 14 days of being called upon to do so, that a Registrar of the Federal Magistrates Court of Australia is appointed to execute the deed, document instrument or writing in the name on the person to whom the direction was given and to do all acts and things as necessary to give validity to the deed, document, instrument or writing.
18.
These Orders are binding upon the executors, administrators, beneficiaries, heirs and assigns of the parties.
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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