ROBSON & PABEN - [2015] FCCA 1402

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROBSON & PABEN

[2015] FCCA 1402

Catchwords:

FAMILY LAW – Parenting – applicant seeking to relocate to New Zealand with parties’ nine year old son.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2) and (3), 61DA, 65DAA, 69ZW

AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Taylor v Barker (2007) 37 Fam FLR 461

MRR v GR [2010] HCA 4
Cowley & Mendoza [2010] FamCA 597
Heath v Hemming (No.2) [2011] FamCA 749

Applicant:

MS ROBSON

Respondent:

MR PABEN

File Number:

MLC 10013 of 2014

Judgment of:

Judge Bender

Hearing date:

13 May 2015

Date of Last Submission:

14 May 2015

Delivered at:

Melbourne

Delivered on:

27 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Hutchings

Solicitors for the Applicant:

Geelong Family Lawyers

Counsel for the Respondent:

Ms Hannan

Solicitors for the Respondent:

Slater and Gordon

ORDERS

The Mother and the Father share long term parental responsibility for the child of the relationship X born (omitted) 2008 (“X”).
X live with the Mother.
The Mother be at liberty to relocate with X to reside in New Zealand on or after Sunday 5 July 2015.
Pending the relocation, X spend time and communicate with the Father:
(a)each week for two nights with the Father to provide the Mother with no less than 7 days notice of his preferred nights;
(b)from the conclusion of school term two on Friday 26 June 2015 until 8:00am on Saturday 4 July 2015;
(c)as otherwise expressly agreed in writing.
Following the relocation, X spend time and communicate with the Father:
(a)by Skype on no less than a weekly basis:
(i)between 4:00pm and 6:00pm New Zealand time when on a weeknight, or at a reasonable time when on a weekend;
(ii)the Mother will keep the Father informed of any nights/times X is unavailable by reason of such things as extra-curricular activities;
(iii)the Father will give the Mother 7 days notice of which nights or weekend days he wishes to communicate with X by Skype and initiate the Skype communications accordingly;
(iv)the Mother will then ensure that X is available for the Skype communication and will afford him privacy during that communication;
(b)by Skype on any special occasion that X will not be spending with the Father including Easter Sunday, Father’s Day, Christmas Day, X’s birthday and the Father’s birthday;
(c)in Australia for 3 periods of 1 week duration during each of the New Zealand school term holidays as agreed between the parties save that:
(i)in the event the first term holidays include Easter, the week X spends with the Father shall alternate each year so that X spends Easter with the Father in the first year after relocation and with the Mother in the following year;
(ii)in the event X’s birthday falls in the third term holidays, the week that X spends with the Father shall alternate each year so that X spends his birthday with the Mother in the first year after relocation and…

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 ROBSON & PABEN

Details

AGLC: ROBSON & PABEN [2015] FCCA 1402
Case: [2015] FCCA 1402
Decision Date: 27 May 2015

CaseChat Overview and Summary

This case concerned an application by the Mother for liberty to relocate with the parties' nine-year-old son, X, to New Zealand. The Father opposed the relocation. The matter came before Judge Bender.

The court was required to determine whether it was in X's best interests to permit the Mother to relocate with him to New Zealand, and if so, what arrangements should be put in place for X to spend time and communicate with the Father.

Judge Bender reasoned that the Mother should be at liberty to relocate with X to New Zealand. The court applied the paramountcy principle, focusing on X's best interests, and considered various factors including the existing parenting arrangements, the proposed arrangements for X's time with the Father, and the need for ongoing communication and involvement of both parents in X's life. The court also made orders regarding counselling for both parents and a restraint on denigration of either parent.

The final orders provided for the Mother and Father to share long-term parental responsibility, with X to live with the Mother. The Mother was granted liberty to relocate to New Zealand on or after 5 July 2015. Detailed provisions were made for X's time and communication with the Father, both before and after the relocation, including arrangements for travel, communication by Skype, and special occasions. The orders also included provisions for the exchange of information regarding X's education and health, and a restraint on the Mother changing X's place of residence from New Zealand except for a return to Australia.

Orders

Orders of the court

The Mother and the Father share long term parental responsibility for the child of the relationship X born (omitted) 2008 (“X”).

X live with the Mother.

The Mother be at liberty to relocate with X to reside in New Zealand on or after Sunday 5 July 2015.

Pending the relocation, X spend time and communicate with the Father:

(a) each week for two nights with the Father to provide the Mother with no less than 7 days notice of his preferred nights;

(b) from the conclusion of school term two on Friday 26 June 2015 until 8:00am on Saturday 4 July 2015;

Following the relocation, X spend time and communicate with the Father:

(a) by Skype on no less than a weekly basis:

(i) between 4:00pm and 6:00pm New Zealand time when on a weeknight, or at a reasonable time when on a weekend;

(ii) the Mother will keep the Father informed of any nights/times X is unavailable by reason of such things as extra-curricular activities;

(iii) the Father will give the Mother 7 days notice of which nights or weekend days he wishes to communicate with X by Skype and initiate the Skype communications accordingly;

(iv) the Mother will then ensure that X is available for the Skype communication and will afford him privacy during that communication;

(b) by Skype on any special occasion that X will not be spending with the Father including Easter Sunday, Father’s Day, Christmas Day, X’s birthday and the Father’s birthday;

(c) in Australia for 3 periods of 1 week duration during each of the New Zealand school term holidays as agreed between the parties save that:

(i) in the event the first term holidays include Easter, the week X spends with the Father shall alternate each year so that X spends Easter with the Father in the first year after relocation and with the Mother in the following year;

(ii) in the event X’s birthday falls in the third term holidays, the week that X spends with the Father shall alternate each year so that X spends his birthday with the Mother in the first year after relocation and with the Father in the following year;

(d) for ten days during the 2015/2016 long summer vacation with such time to include Christmas Day and New Years Day;

(e) for two weeks in the long summer vacation commencing 2016/2017, such period to include Christmas Day and New Years Day in the 2017/2018 holidays and each alternate year thereafter and on the basis that X is with the Mother for Christmas Day and New Years Day in the 2016/2017 holidays and each alternate year thereafter;

(f) liberally by agreement should the Father travel to (omitted), New Zealand upon giving the Mother no less than three weeks notice of his dates of travel;

(g) liberally by agreement should the Mother travel with X to the (omitted) or Melbourne region in Australia and the Mother will give the Father no less than three weeks notice of the dates of any such travel;

(h) as otherwise agreed in writing from time to time.

Subject to order (5) herein, the travel arrangements be by agreement between the parties and both parties shall use their best endeavours to reach an agreement in a timely manner, but failing agreement by a date 6 weeks prior to the relevant school holiday period:

(a) the Father will confirm to the Mother by email his intention to spend time with X in the upcoming school holiday period and of the dates proposed by him for X’s time with him;

(b) within 48 hours of the Father’s email in paragraph (a) above the Mother will book X’s travel from New Zealand to Australia and inform the Father forthwith by email of the itinerary and of her availability for X’s return travel date;

(c) within 48 hours of the Mother’s email in paragraph (b) above the Father will book X’s return travel from Australia to New Zealand to accord reasonably with the Mother’s availability and with the time provided for by these orders and inform the Mother forthwith by email of the itinerary;

(d) each party will bear the costs of and associated with the travel for X as booked by that party; and

(e) each party should they accompany X on any or all parts of his travel will bear their own costs and the Mother shall accompany X for such travel until such time as the parties agree X is able to travel as an unoccupied minor.

The Mother will facilitate X communicating with the Father and with paternal family members by Skype and/or telephone at all reasonable times that X requests to do so and receiving communications at reasonable times other than as set out in these Orders by Skype, telephone and letter.

The Father, his servants and agents will facilitate X communicating with the Mother by Skype twice weekly when X is spending time with him and on any special occasion that X is spending with the Father including Easter Sunday, the Mother’s birthday, Christmas Day and X’s birthday and at all reasonable times by Skype and/or telephone as X may request.

The Father be hereby authorised by this order to receive all information from X’s place of education, treating medical practitioners and other extra-curricular organisations with which X may be involved from time to time that parents usually receive, and the Mother will keep the Father notified in writing of the names and contact details of same and will provide each with a copy of these orders.

10.

Notwithstanding paragraph (9) above, the Mother will keep the Father informed of X’s progress and development and will provide to the Father no less than twice yearly current photographs of X and pictures, stories or other such material as X may produce at school.

11.

The Mother and the Father, their servants and agents be hereby restrained from denigrating the other parent or members of the other parent’s family in the presence of hearing of X.

12.

The Mother continue to engage in counselling and any other treatment reasonably recommended by her treating professionals for so long as recommended and thereafter from time to time as and if required and upon her relocation to New Zealand the Mother shall continue to engage in counselling and the Mother shall provide all counsellors seen by her with a copy of the assessment of Dr W dated 21 April 2015, the family report of Ms J dated 29 March 2015 and a copy of these orders.

13.

The Mother and the Father each enrol in and complete child focussed counselling with either of (omitted) Support Centre in (omitted) or the Family Relationship Centre in (omitted) and provide their counsellor with a copy of the family report of Ms J dated 29 March 2015 and a copy of these orders.

14.

The parties will communicate by email save in emergency or express agreement otherwise.

15.

The Mother will be restrained from changing X’s place of residence from New Zealand save and except for a return to Australia.

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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