Russon and Duane

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FEDERAL CIRCUIT COURT OF AUSTRALIA

RUSSON & DUANE [2013] FCCA 4
Catchwords:
FAMILY LAW – Parenting orders – relocation intra-state – children’s views – parents capacities to care for children – consideration of parents freedom of movement – children’s best interests – reasonable practicability.

Legislation:
Family Law Act 1975 (Cth)
Federal Circuit Court Rules2001

Federal Circuit Court Regulations

Cases cited:
Morgan & Miles [2007] FamCA 1230
Paskandy & Paskandy (1999) FLC 92-878 [86,456]
MRR & GR (2010) 240 CLR 461
KB & TC (2005) FLC 93-224
A & ARelocation Approach (2000) FLC 93-035
U & U (2002) FLC 92-122
D & SV (2003) FLC 93-137
McCall & Clark (2009) FLC 93-405

Champness & Hanson [2009] FamCAFC 96

Applicant: MR RUSSON
Respondent: MS DUANE
File Number: MLC 6036 of 2010
Judgment of: Judge McGuire
Hearing dates: 2 & 3 April 2013
Date of Last Submission: 3 April 2013
Delivered at: Melbourne
Delivered on: 19 April 2013

REPRESENTATION

Counsel for the Applicant: Mr Burns
Solicitors for the Applicant: G A Black & Co
Counsel for the Respondent: Mr Stanley
Solicitors for the Respondent: Ken Smith & Associates

ORDERS

THE COURT ORDERS THAT:

  1. All extant orders in respect of the children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2005 (“[Y]”) be discharged.

  2. The applicant mother and the respondent father have equal shared parental responsibility for the children [X] and [Y].

  3. [X] and [Y] live with the mother and that she be permitted to move their primary place of abode from [H] to [W].

  4. [X] and [Y] spend time with and communicate with the father as follows:

    (a)Each second weekend from Friday at 4.15 pm (or otherwise as agreed between the parties) until Sunday at 6.00 pm (extending to Monday at 6.00 pm in the event of a long weekend or a student free school day);

    (b)On one other night each week from 4.15 pm (or otherwise as agreed between the parties) until the following morning as agreed between the parties, such night to be at the choice of the father but consistently the same night each week subject to agreement otherwise between the parties;

    (c)For one half of all school holidays excepting Christmas Eve to Boxing Day and the parties’ birthdays (with the parties to agree to which half and in the absence of agreement, the father is to have the first half in even years and the second half of odd years);

    (d)(i)     For the period of Christmas from 12.00 noon on 24 December to 3.00 pm on 25 December each and every alternative year to commence in December 2013; and

    (ii)From 3.00 pm on 25 December to 6.00 pm on 26 December in alternative years to commence in 2014:

    (e)For time as agreed between the parties on the father’s birthday and each of the children’s birthdays;

    (f)If the children are not otherwise with the father, then from 5.00 pm on the Saturday until 6.00 pm on the Sunday for Father’s Day but should the children be with…

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Details
Case
[2013] FCCA 4
Decision Date

CaseChat Overview and Summary

In *Russon and Duane*, the applicant mother sought orders concerning the parental responsibility and living arrangements for the parties' two children, [X] and [Y]. The respondent father sought orders for time with the children. The matter came before Judge McGuire.

The court was required to determine the most appropriate orders for the children's welfare, specifically regarding equal shared parental responsibility, the children's primary place of residence, and the time the children would spend with each parent. The court also considered the mother's application to relocate the children's primary abode from [H] to [W].

Judge McGuire discharged all extant orders and made new orders reflecting equal shared parental responsibility. The children were ordered to live with the mother, and she was permitted to move their primary place of abode to [W]. The father was granted significant time with the children, including alternate weekends, one night per week, half of all school holidays (with specific provisions for Christmas), and time on birthdays and Father's Day. The court also stipulated that changeovers would occur at a mutually agreed location between [H] and [W], or failing agreement, the parties had liberty to apply. The orders also ensured both parents had access to the children's school information. The court noted that the particulars of the obligations and consequences of contravention were set out in an attached Fact Sheet, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975*.

Orders

Orders of the court

THE COURT ORDERS THAT:

1.

All extant orders in respect of the children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2005 (“[Y]”) be discharged.

2.

The applicant mother and the respondent father have equal shared parental responsibility for the children [X] and [Y].

3.

[X] and [Y] live with the mother and that she be permitted to move their primary place of abode from [H] to [W].

4.

[X] and [Y] spend time with and communicate with the father as follows:

(a) Each second weekend from Friday at 4.15 pm (or otherwise as agreed between the parties) until Sunday at 6.00 pm (extending to Monday at 6.00 pm in the event of a long weekend or a student free school day);

(b) On one other night each week from 4.15 pm (or otherwise as agreed between the parties) until the following morning as agreed between the parties, such night to be at the choice of the father but consistently the same night each week subject to agreement otherwise between the parties;

(c) For one half of all school holidays excepting Christmas Eve to Boxing Day and the parties’ birthdays (with the parties to agree to which half and in the absence of agreement, the father is to have the first half in even years and the second half of odd years);

(d) (i) For the period of Christmas from 12.00 noon on 24 December to 3.00 pm on 25 December each and every alternative year to commence in December 2013; and

(ii) From 3.00 pm on 25 December to 6.00 pm on 26 December in alternative years to commence in 2014:

(e) For time as agreed between the parties on the father’s birthday and each of the children’s birthdays;

(f) If the children are not otherwise with the father, then from 5.00 pm on the Saturday until 6.00 pm on the Sunday for Father’s Day but should the children be with the father pursuant to these orders on the Mother’s Day weekend then such time concludes at 5.00 pm on the Saturday.

5.

For the purposes of [X] and [Y] spending time with their father, changeover occur at the appointed times at a venue near equal distance between [H] and [W] to be agreed between the parties but failing agreement then the parties have liberty to apply.

6.

These orders enable and entitle each parent to all access to the children’s school principal and teachers normally afforded parents and to be provided with all school reports and notices.

AND THE COURT NOTES THAT:

7.

Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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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