Richards and Howard - [2008] FMCAfam 458

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RICHARDS & HOWARD

[2008] FMCAfam 458

FAMILY LAW – Parenting – relocation – interstate – urgent interim application by grandparents.

Family Law Act 1975, Part VII, ss.60B (1), (2), 60CA, 60CC, 60CC (2)(a), (3), (3)(a), (b), (b)(ii), (d), (e), 61D, 61DA (3), 65DAA, 65DAA (5)

A v A: Relocation Approach (2000) FLC¶ 93-035

AMS v AIF (1999) 199 CLR 160

Bolitho and Cohen (2005) FLC¶ 93-224

B v B [2006] FamCA 1207
Dennett & Norman [2007] FamCA 57 (13^th February 2007)
F v F (2008) Fam LR 52
Godfrey & Sanders [2007] FamCA 102
Goode v Goode (2007) 36 Fam LR 422
Lamereaux v Noirot (2008) FLC ¶93-364
Morgan & Miles (2007) FLC ¶93-343

P and P (2005) FLC¶ 93-239

Sampson v Hartnett (No 10) (2007) FLC ¶93-350
Taylor v Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238

Boland, J. A Review of the Case Law 2007 – 2008: An Update, 2008 Family Law Intensive, Sydney.

Applicants:

MR RICHARDS & MS RICHARDS

Respondent:

MS HOWARD

File number:

CAC 404 of 2008

Judgment of:

Neville FM

Hearing date:

30 April 2008

Date of last submission:

30 April 2008

Delivered at:

Canberra

Delivered on:

9 May 2008

REPRESENTATION

Counsel for the Applicant:

Ms Szczepanek as agent

Solicitors for the Applicant:

Gordon Garling Moffitt

Counsel for the Respondent:

Ms Pitts

Solicitors for the Respondent:

McCabe Partners Lawyers

ORDERS

The children, D born in 2001 and K born in 2003 relocate to [G], Queensland and live with the applicants.
The applicants, mother and father have equal shared parental responsibility for the children.
The children spend time and communicate with their mother as follows:-
(a)For the entire school holiday period in both the Term 2 and 3 holidays in 2008, with location and times to be agreed between the parties.
(b)For a period of 3 weeks during the Christmas/January school holidays with the commencement to be the day after the last date of the school term 4 for 2008, with location and times to be agreed between the parties.
(c)By telephone and internet at any reasonable time, but at a minimum by telephone every Friday night from 7pm to 7:30pm (EST).
All travel expenses in relation to the children be paid by the grandparents, with the mother to pay for one trip per year for each of the children (return).
The mother will provide financial support to the children in accordance with any administrative assessment carried out by the Child Support Agency.
The consumption of alcohol be kept to a minimum whilst the children are in either the grandparents’, father’s or mother’s care.
No visitors are to stay overnight at the home of the grandparents, the father and the mother whilst the children are spending time in their care without the consent of the other parties.
The applicants, father and the mother are to notify each other within
24 hours of any sickness or injury to the children during the time spent…

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 Richards and Howard

Details

AGLC: Richards and Howard [2008] FMCAfam 458
Case: [2008] FMCAfam 458
Decision Date: 9 May 2008

CaseChat Overview and Summary

Richards and Howard is a case that involves two parties, the applicants, and the mother. The applicants, who are the children's mother and father, seek orders for the relocation of their children to Queensland and for the establishment of a parenting arrangement. The dispute is centred around the welfare and upbringing of the children, D and K, born in 2001 and 2003, respectively. The matter was heard in the Family Court of Australia.

The legal issues before the court involved the relocation of the children to Queensland, the allocation of parental responsibility, and the terms of the parenting arrangement. The applicants sought to establish a parenting plan that would allow for the children's safety and well-being, including provisions for contact with their mother, travel expenses, and communication. The court had to consider the children's best interests, as well as the views of both parents and any other relevant parties.

The court found that the relocation of the children to Queensland was in their best interests, given the applicants' ability to provide a stable and supportive environment. The court also determined that the applicants should have equal shared parental responsibility for the children, with specific provisions for contact with their mother, including school holiday periods and regular communication. The court emphasised the importance of minimising alcohol consumption, ensuring safe accommodation, and avoiding derogatory comments in the presence of the children. The court further ordered the transfer of the matter to another docket for further consideration of the remaining issues.

The final orders of the court included the relocation of the children to Queensland, equal shared parental responsibility for the applicants, and a detailed parenting plan that outlines the terms of contact with the mother, travel expenses, and communication. The court also emphasised the importance of the children's safety and well-being, and the need for both parents to provide appropriate and safe accommodation, as well as keeping each other informed of any sickness or injury to the children. The matter was transferred to another docket for further consideration of the remaining issues.

Orders

Orders of the court

The children, D born in 2001 and K born in 2003 relocate to [G], Queensland and live with the applicants.

The applicants, mother and father have equal shared parental responsibility for the children.

The children spend time and communicate with their mother as follows:-

(a) For the entire school holiday period in both the Term 2 and 3 holidays in 2008, with location and times to be agreed between the parties.

(b) For a period of 3 weeks during the Christmas/January school holidays with the commencement to be the day after the last date of the school term 4 for 2008, with location and times to be agreed between the parties.

(c) By telephone and internet at any reasonable time, but at a minimum by telephone every Friday night from 7pm to 7:30pm (EST).

All travel expenses in relation to the children be paid by the grandparents, with the mother to pay for one trip per year for each of the children (return).

The mother will provide financial support to the children in accordance with any administrative assessment carried out by the Child Support Agency.

The consumption of alcohol be kept to a minimum whilst the children are in either the grandparents’, father’s or mother’s care.

No visitors are to stay overnight at the home of the grandparents, the father and the mother whilst the children are spending time in their care without the consent of the other parties.

The applicants, father and the mother are to notify each other within

24 hours of any sickness or injury to the children during the time spent with the applicants, father or mother.

The applicants, father and the mother are to provide appropriate and safe accommodation for the children whilst they are in their care.

10.

The mother be informed of the length of any custodial sentence served by the father and his release date.

11.

The applicants are to ensure that any reports, newsletters or important information relating to the children’s attendance and progress at school/day care are made available to the mother.

12.

The mother is to be kept informed of the children’s progress at the school/day care centre and any behaviour issues and any notification of events affecting the children in regards to parent/teacher nights, sporting and social events.

13.

That the applicants, father and the mother be restrained from denigrating the other in the presence of the children or knowingly permitting any other person to do so.

14.

The matter be transferred to the Rockhampton circuit of this Court, in FM Coker’s docket.

AND IT IS NOTED:

(a) Upon transfer of this matter to FM Coker’s docket, the issues of allocating a final hearing date, appointing an Independent Children’s Lawyer, and allocating a reportable family conference will be considered by FM Coker.

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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