Russon and Duane - [2009] FMCAfam 464

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RUSSON & DUANE

[2009] FMCAfam 464

FAMILY LAW – Parenting – relocation – impact of relocation on children’s time with father – effect of relocation on meaningful relationship considered – children’s best interests served by permitting relocation.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Morgan & Miles [2007] FamCA 1230
AMS v AIF; AIF v AMS [1999] 199 CLR 160
U v U [2002] 211 CLR 238
A v A: Relocation approach (2000) FLC ¶93-035
Illidge & Norton [2008] FMCAfam 1255
F & F (2008) 38 Fam LR 52
D and SV (1997) FLC ¶93-137
B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755
Tait & Densmore [2007] FamCA 1383

Applicant:

MS RUSSON

Respondent:

MR DUANE

File Number:

DGC 2055 of 2008

Judgment of:

McGuire FM

Hearing date:

22 April 2009

Date of Last Submission:

22 April 2009

Delivered at:

Melbourne

Delivered on:

22 June 2009

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Nicholson

Solicitors for the Respondent:

Mahloko-Boardmans Solicitors

ORDERS

That all previous orders be discharged.
That the mother and the father have equal shared parental responsibility for the children of the marriage [X] born [in] 1994, [Y] born [in] 1996 and [Z] born [in] 1998 (“the children”).
That the children live with the mother.
That the mother be permitted to relocate the children to reside in the [B] municipality.
That the children spend time with and communicate with the father as follows:
(a)Each alternate weekend from 5.00 pm (or such other time as agreed between the parties from time to time) on Friday until 7.00 pm on Sunday (extending to Monday in the event of a long weekend or student-free day).
(b)For a period of one week during the Victorian gazetted summer school holidays in each year commencing at 9.00 am on the third Saturday in January in each year.
(c)For two further weeks in the summer school holidays and for a week in each of the Victorian gazetted term school holidays such times to be exercised at the option of the father but conditional upon the father giving the mother not less than 28 days notice in writing of his intention to exercise such time with the children.
(d)Should Father’s Day fall on a weekend when the children are not otherwise with the father, then from 10.00 am to 5.00 pm on the Father’s Day but should Mother’s Day fall on a weekend when the children are with the father then such time with terminate at 10.00 am on the Sunday.
(e)From 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day in 2009 and in each alternate year thereafter.
(f)From 4.00 pm on Christmas Day until 4.00 pm on Boxing Day in 2010 and in each alternate year thereafter.
(g)From 5.00 pm on Easter Thursday until 5.00 pm on Easter Monday in 2011 and in each alternate year thereafter.
(h)By telephone at any reasonable time but specifically between the hours of 6.30…

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 Russon and Duane

Details

AGLC: Russon and Duane [2009] FMCAfam 464
Case: [2009] FMCAfam 464
Decision Date: 22 June 2009

CaseChat Overview and Summary

Russon and Duane involved a dispute between the parents over the care and custody of their three children. The matter was heard in the Family Court of Australia. The primary issues for determination were the allocation of parental responsibility and the specific arrangements for the children's residence and time spent with each parent.

The court was tasked with determining the most appropriate arrangements for the children's care and the allocation of parental responsibility between the mother and the father. Given the significant time the children had already spent with the mother, the court concluded that it was in the best interests of the children to remain with her. However, the court acknowledged the father's role and provided detailed and structured arrangements for his time with the children.

In its judgment, the court discharged all previous orders and established new arrangements for the children's care. It ordered that the mother and father have equal shared parental responsibility. The children were to live with the mother but were permitted to relocate with her to a specified municipality. The father was granted specific periods of time with the children, including alternate weekend visits, additional time during school holidays, and special occasions such as Christmas and Easter. The father's time was to be suspended during the mother's holiday period with the children, and the parents were to meet at a designated location for changeovers. Additionally, the mother was required to provide the father with copies of school reports and notices, and the father was permitted to attend school-related events.

The court issued comprehensive orders to ensure a balanced and structured arrangement for the children's care, residence, and time spent with each parent.

Orders

Orders of the court

That all previous orders be discharged.

That the mother and the father have equal shared parental responsibility for the children of the marriage [X] born [in] 1994, [Y] born [in] 1996 and [Z] born [in] 1998 (“the children”).

That the children live with the mother.

That the mother be permitted to relocate the children to reside in the [B] municipality.

That the children spend time with and communicate with the father as follows:

(a) Each alternate weekend from 5.00 pm (or such other time as agreed between the parties from time to time) on Friday until 7.00 pm on Sunday (extending to Monday in the event of a long weekend or student-free day).

(b) For a period of one week during the Victorian gazetted summer school holidays in each year commencing at 9.00 am on the third Saturday in January in each year.

(c) For two further weeks in the summer school holidays and for a week in each of the Victorian gazetted term school holidays such times to be exercised at the option of the father but conditional upon the father giving the mother not less than 28 days notice in writing of his intention to exercise such time with the children.

(d) Should Father’s Day fall on a weekend when the children are not otherwise with the father, then from 10.00 am to 5.00 pm on the Father’s Day but should Mother’s Day fall on a weekend when the children are with the father then such time with terminate at 10.00 am on the Sunday.

(e) From 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day in 2009 and in each alternate year thereafter.

(f) From 4.00 pm on Christmas Day until 4.00 pm on Boxing Day in 2010 and in each alternate year thereafter.

(g) From 5.00 pm on Easter Thursday until 5.00 pm on Easter Monday in 2011 and in each alternate year thereafter.

(h) By telephone at any reasonable time but specifically between the hours of 6.30 pm and 7.00 pm each Tuesday and Thursday and on those Sundays when the father is not otherwise spending time with the children pursuant to these orders.

(i) Such other times as agreed between the parties from time to time.

That the father’s time with the children pursuant to these orders be suspended from 27 December in each year to 9.00 am on the third Saturday in January in each year provided that the mother is on holidays with the children during this period.

That for the purposes of changeovers for these orders the parties meet at an agreed location at [E] in Victoria at the designated times or otherwise as agreed.

That the mother authorise any school attended by the children to provide the father, at the expense of the father if any, with copies of all school reports, school notices and invitations to parent teacher interviews.

That the father be at liberty to attend any school related events.

10.

Pursuant to Section 65DA(2) 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 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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