RAYNE & ZAHAWI - [2015] FamCA 1003

FAMILY COURT OF AUSTRALIA

RAYNE & ZAHAWI

[2015] FamCA 1003

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where the father seeks to relocate the children to Country F – Where the father has already relocated and the children currently remain in Australia in the care of the father’s wife along with her own two children – Where the mother opposes the application and seeks equal shared parental responsibility for the children – Consideration of s 60CC – Where the children have lived in the primary care of the father for over three years now – Where the Court finds the presumption of equal shared parental responsibility is rebutted – Where the Court finds the father is unlikely to facilitate the children’s relationship with the mother if relocation is permitted – Orders made for the children to remain in Australia – Father to have sole parental responsibility for the children – Mother to spend time with and communicate with the children.

Family Law Act 1975 (Cth) – ss 60B, 60CC, 61DA, 65DAA

MRR v GR (2010) 240 CLR 461
Taylor & Barker (2008) Fam LR 461

APPLICANT:

Ms Rayne

RESPONDENT:

Mr Zahawi

INDEPENDENT CHILDREN’S LAWYER:

Ebejer & Associates Lawyers

FILE NUMBER:

MLC

8142

2012

DATE DELIVERED:

13 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Stevenson J

HEARING DATE:

9-10 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr McClosky
SOLICITOR FOR THE APPLICANT:	Allan McMonnies

COUNSEL FOR THE RESPONDENT:

Mr Paterson

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ebejer & Associates Lawyers

Orders

That all existing orders in relation to the children:
·B born on … 2008; and
·C born on … 2011
(“the children”) are discharged.
That the father have sole parental responsibility for the children.
That the children live with the father noting that they will live with

Ms D until the father returns from Country F to Melbourne.
That the father is restrained from relocating the children’s residence from Melbourne without the written consent of the mother or an order of the court.
That the children spend time and communicate with the mother as follows:
(a)For four weeks following the date of these orders for five hours each Saturday and Sunday;
(b)For the next four weeks from 2.00 pm on Saturday until 10.00 am on Sunday each alternate weekend and each Wednesday from the conclusion of school until 7.00 pm;
(c)Thereafter and until the commencement of the 2016 school year, from the conclusion of school or 3.00 pm on Friday until 5.00 pm on Sunday each alternate weekend and each Wednesday from the conclusion of school or 3.00 pm until 7.00 pm;
(d)From the commencement of the 2016 school year:
(i)From the conclusion of school or 3.00 pm on Friday until 5.00 pm on Sunday each alternate weekend and from the conclusion of school on Wednesday until the commencement of school on Thursday in every other week;
(ii)For one half…

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 RAYNE & ZAHAWI

Details

AGLC: RAYNE & ZAHAWI [2015] FamCA 1003
Case: [2015] FamCA 1003
Decision Date: 13 November 2015

CaseChat Overview and Summary

In the matter of Rayne & Zahawi, Stevenson J of the Federal Circuit Court of Australia considered an application concerning the parenting arrangements for two children, B and C. The dispute involved the father and mother seeking orders regarding the children's residence, time spent with each parent, and parental responsibility.

The court was required to determine the most appropriate parenting orders for the children, considering their best interests. This included deciding on the allocation of sole parental responsibility, the primary residence of the children, and the specific arrangements for the children to spend time and communicate with the mother. The court also had to address the father's potential relocation and the mother's access to information regarding the children's health and education.

Stevenson J applied the principles of the *Family Law Act 1975* (Cth), focusing on the paramount consideration of the children's best interests. The court discharged all existing orders and made new orders. The father was granted sole parental responsibility, and the children were to live with him. However, a temporary arrangement was put in place for the children to live with Ms D until the father returned to Melbourne from overseas. The father was restrained from relocating the children's residence from Melbourne without the mother's consent or a court order. Detailed provisions were made for the children to spend time and communicate with the mother, with specific arrangements outlined for various periods and holidays. The court also ordered that each parent inform the other of any significant illness of the children and granted the mother access to consult with the children's health professionals and educational institutions. Both parents were permitted to attend school functions and extracurricular activities.

Orders

Orders of the court

That all existing orders in relation to the children:

· B born on … 2008; and

· C born on … 2011

(“the children”) are discharged.

That the father have sole parental responsibility for the children.

That the children live with the father noting that they will live with

Ms D until the father returns from Country F to Melbourne.

That the father is restrained from relocating the children’s residence from Melbourne without the written consent of the mother or an order of the court.

That the children spend time and communicate with the mother as follows:

(a) For four weeks following the date of these orders for five hours each Saturday and Sunday;

(b) For the next four weeks from 2.00 pm on Saturday until 10.00 am on Sunday each alternate weekend and each Wednesday from the conclusion of school until 7.00 pm;

(c) Thereafter and until the commencement of the 2016 school year, from the conclusion of school or 3.00 pm on Friday until 5.00 pm on Sunday each alternate weekend and each Wednesday from the conclusion of school or 3.00 pm until 7.00 pm;

(d) From the commencement of the 2016 school year:

(i) From the conclusion of school or 3.00 pm on Friday until 5.00 pm on Sunday each alternate weekend and from the conclusion of school on Wednesday until the commencement of school on Thursday in every other week;

(ii) For one half of the terms 1, 2 and 3 school holidays as agreed between the parties or being the first half in default of agreement; and

(iii) For one half of the Christmas school holidays commencing in 2016/2017 as agreed between the parties or being each alternate week in default of agreement.

(e) By Skype and/or telephone on at least one occasion per week.

That each of the parties inform the other as soon as is practicable of any significant illness or injury suffered by the children while in his or her care.

That the father provide all necessary consents and authorities to enable the mother:

(a) To consult with the children’s treating health professionals; and

(b) To consult with staff at the children’s schools or child care centre and receive copies of reports, newsletters, photographs and any other information which is normally available to parents.

That both parties are at liberty to attend all functions and events to which parents are normally invited at the children’s school.

That the mother is at liberty to attend all events associated with the children’s extracurricular activities, including but not limited to martial arts classes.

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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