Reilly and Mooney - [2017] FamCA 1164

FAMILY COURT OF AUSTRALIA

REILLY & MOONEY

[2017] FamCA 1164

FAMILY LAW – CHILDREN – PARENTING – International relocation – child not yet two years of age – where there is no discernible relationship between father and child – where mother suffers anxiety – where family violence manifested in mother’s fear – where nothing supports mother’s retention in Australia.
FAMILY LAW – PARENTING – coercive orders – where father seeks order that mother move to Brisbane – where that sort of order is extreme and unusual – where the evidence does not support such a move.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Reilly

RESPONDENT:

Mr Mooney

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

3092

2017

DATE DELIVERED:

17 October 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

25, 26 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Chislett

SOLICITOR FOR THE APPLICANT:

Gaffney Law

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

Paragraph 3 of the orders made on 8 June 2017 (the Airport Watch order) is forthwith discharged.
All other extant parenting orders are discharged.
The father and the mother have equal shared parental responsibility for all major long-term decisions relating to X born … 2015 and for that purpose, communications be by electronic means.
That the child live with the mother.
Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the mother has permission to take the child from the Commonwealth of Australia and travel with him internationally.
That as soon as practicable, the mother notify the father of the date that she is leaving Australia to live in the UK.
The father spend time with the child:
(a)Before the mother leaves Australia, and at any time she returns to Australia, from 10 am to 5 pm (or such other time as may be agreed) on each Saturday and each Sunday in Melbourne; and
(b)When the mother returns to the UK, and if the father travels there, during each day from 10 am until 5 pm (provided he has given the mother 2 weeks’ notice of his intention to travel to the UK)
The father have FaceTime communication (or electronic equivalent) with the child on each Monday and Thursday at 6 pm (Queensland time) for up to 30 minutes and the mother do all things necessary to facilitate such communication.
That in addition to the days referred to in paragraph 8, but with the same arrangements, the father have FaceTime communication on Christmas Day, Easter Sunday, his birthday, Fathers’ Day and the child’s birthday.
Within 60 days, the father and the mother do all things necessary to register these orders in a court of competent jurisdiction in the United Kingdom.
The order for the appointment of an Independent Children’s Lawyer is discharged.
Pursuant to Sections 65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences…

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 Reilly and Mooney

Details

AGLC: Reilly and Mooney [2017] FamCA 1164
Case: [2017] FamCA 1164
Decision Date: 17 October 2017

CaseChat Overview and Summary

In the matter of *Reilly and Mooney*, Cronin J considered parenting orders concerning a child born in 2015. The dispute involved the arrangements for the child's residence, parental responsibility, and communication between the parents, particularly in light of the mother's intention to relocate to the United Kingdom with the child.

The court was required to determine the appropriate parenting arrangements, including the extent of equal shared parental responsibility for major long-term decisions, the child's primary residence, and the nature and frequency of the father's time with the child, both before the mother's departure and during potential visits to the UK. Additionally, the court had to consider the mother's application for permission to take the child internationally and the registration of the orders in the United Kingdom.

Cronin J ordered the discharge of previous parenting orders, including an "Airport Watch order" and the appointment of an Independent Children's Lawyer. The court established equal shared parental responsibility for major long-term decisions, with communications to be conducted electronically. The child was ordered to live with the mother, who was granted permission to travel internationally with the child to live in the UK. Specific provisions were made for the father's weekend time with the child in Melbourne before the mother's departure and upon her return, as well as for FaceTime communication when the child is in the UK. The father was also granted specific FaceTime communication on significant dates. The parties were directed to register the orders in the United Kingdom within 60 days.

Orders

Orders of the court

Paragraph 3 of the orders made on 8 June 2017 (the Airport Watch order) is forthwith discharged.

All other extant parenting orders are discharged.

The father and the mother have equal shared parental responsibility for all major long-term decisions relating to X born … 2015 and for that purpose, communications be by electronic means.

That the child live with the mother.

Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the mother has permission to take the child from the Commonwealth of Australia and travel with him internationally.

That as soon as practicable, the mother notify the father of the date that she is leaving Australia to live in the UK.

The father spend time with the child:

(a) Before the mother leaves Australia, and at any time she returns to Australia, from 10 am to 5 pm (or such other time as may be agreed) on each Saturday and each Sunday in Melbourne; and

(b) When the mother returns to the UK, and if the father travels there, during each day from 10 am until 5 pm (provided he has given the mother 2 weeks’ notice of his intention to travel to the UK)

The father have FaceTime communication (or electronic equivalent) with the child on each Monday and Thursday at 6 pm (Queensland time) for up to 30 minutes and the mother do all things necessary to facilitate such communication.

That in addition to the days referred to in paragraph 8, but with the same arrangements, the father have FaceTime communication on Christmas Day, Easter Sunday, his birthday, Fathers’ Day and the child’s birthday.

10.

Within 60 days, the father and the mother do all things necessary to register these orders in a court of competent jurisdiction in the United Kingdom.

11.

The order for the appointment of an Independent Children’s Lawyer is discharged.

12.

Pursuant to Sections 65DA(2) and 62B of the Act, 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 those particulars are included in these orders.

13.

That all applications for parenting orders are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.