Rogers and Lenard - [2010] FMCAfam 764

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROGERS & LENARD

[2010] FMCAfam 764

FAMILY LAW – Children – Interim parenting orders – relocation – two children living with the Mother – unilateral decision by Mother to relocate to Melbourne – whether Mother should return the children to live in Sydney – best interests of the children.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA
Crimes (Sentencing Procedure) Act 1999 (NSW), s.10

Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343

Applicant:

MR ROGERS

Respondent:

MS LENARD

File Number:

SYC 1585 of 2010

Judgment of:

Scarlett FM

Hearing date:

7 July 2010

Date of Last Submission:

7 July 2010

Delivered at:

Sydney

Delivered on:

9 July 2010

REPRESENTATION

Counsel for the Applicant:

Ms Harris

Solicitors for the Applicant:

Sweeney Tiggemann

Counsel for the Respondent:

Ms Nash

Solicitors for the Respondent:

Carew Counsel Pty Ltd

ORDERS UNTIL FURTHER ORDER

That the Respondent Mother is to do all things necessary to return the children [X] born [in] 2003 and [Y] born [in] 2005 to reside in the Sydney metropolitan area within fourteen (14) days.
That the Father and the Mother are to have equal shared parental responsibility for the said children.
That the said children are to spend time with the Father from 3:00pm on Friday 9 July 2010 to 3:00pm Friday 16 July 2010 at the home of the paternal grandparents Ms R and Mr R at [address omitted] in the State of New South Wales.
For the purpose of Order 3 above the Mother is to deliver the said children to the Father at 3:00pm on Friday 9 July and the Father is to return the children to the Mother in the foyer of the Court at 97-99 Goulburn Street Sydney or such other place as the parties shall agree on Friday 16 July 2010.
During the time that the children spend with the Father as set out in Order 3 above the Father is to ensure that the children are provided with a bedroom which they are to share with no other person but each other.
The Father and Mother are to do all things necessary to re-enrol the said children at [S] Primary School at [address omitted] within twenty-one (21) days.
The Father is to file and serve an affidavit setting out the arrangements that he has made for accommodation of the children at his home within fourteen (14) days.

IT IS NOTED that publication of this judgment under the pseudonym Rogers & Lenard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 1585 of 2010

MR ROGERS

Applicant

And

MS LENARD

Respondent

REASONS FOR JUDGMENT

Application

This is application is about the parties’ two daughters, [X] and [Y]. The Father seeks orders that the Mother should return them to live in Sydney, but the Mother wants them to stay living with her in Melbourne.
By her response,…

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 Rogers and Lenard

Details

AGLC: Rogers and Lenard [2010] FMCAfam 764
Case: [2010] FMCAfam 764
Decision Date: 9 July 2010

CaseChat Overview and Summary

In the case of Rogers v Lenard, the Federal Magistrates Court of Australia was tasked with resolving a dispute over the relocation of two young daughters between Sydney and Melbourne. The applicant father, Mr Rogers, sought orders for the children to return to live with him in Sydney, while the respondent mother, Ms Lenard, desired that they remain with her in Melbourne. The court had to determine whether the children should reside in Melbourne until the final hearing or return to Sydney, as well as the appropriate arrangements for the father’s time with the children.

The court examined the evidence and submissions from both parties, taking into account the paramount consideration of the children's best interests under the Family Law Act 1975. The court noted that the mother's relocation to Melbourne was unilateral and not communicated to the father, and found that it was not in the children's best interests to have limited contact with their father. The court was also concerned that the mother appeared to be attempting to exclude the father from the children's lives. While the court acknowledged the mother's desire to be closer to her family in Melbourne, it concluded that this was not a compelling reason to move without proper consideration of all issues.

Consequently, the court ordered that the children should return to Sydney to live with their father and be re-enrolled in their former school. The court also ordered that the father and mother should have equal shared parental responsibility and that the father should have substantial time with the children during the school holidays at his parents' home. The court found that the matter should remain in the Sydney Registry of the Court.

Orders