Ryder & Roby - [2009] FMCAfam 416

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RYDER & ROBY

[2009] FMCAfam 416

FAMILY LAW – Parenting – relocation – mother seeks relocation to New Zealand with two children aged 10 and 7 – relocation would advance step-father’s career – both mother and father re-partnered – best interests of the children – substantial and significant time.

Family Law Act 1975, ss.60B(2)(a), 60CA , 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 64B, 65DAA, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(4), 65DAA(5)

AMS v AIF (1999) 199 CLR 160

F v F (2007) 38 Fam LR 52
Garvey v Eccles [2008] FMCAfam 1218
Godfrey v Sanders [2007] FamCA 102
Illidge & Norton [2008] FMCAfam 1255
In the Marriage of Hall (1979) 5 Fam LR 609
Morgan v Miles (2007) 38 Fam LR 275
Silas & Berry (2009) FMCAfam 448
U v U (2002) 211 CLR 238
W v R (2006) 35 Fam LR 608; Walls v Robinson (2006) FLC 93-251.

Applicant:

MS RYDER (FORMERLY ROBY)

Respondent:

MR ROBY

File Number:

MLC 9906 of 2008

Judgment of:

Monahan FM

Hearing date:

5 February 2009

Date of Last Submission:

6 February 2009

Delivered at:

Melbourne

Delivered on:

24 June 2009

REPRESENTATION

Counsel for the Applicant:

Ms Swart

Solicitors for the Applicant:

Baird & Mcgregor

Counsel for the Respondent:

Mr Whitchurch

Solicitors for the Respondent:

Heinz & Partners

ORDERS

The parties have equal shared parental responsibility for the long term care, welfare and development of the children, [X] born in 1999 (“[X]”) and [Y] born in 2001 (“[Y]”) (collectively “the children”).
The children live with the Wife.
The children spend time and communicate with the Husband as follows:
(a)During school terms each alternate weekend:
(i)from the commencement of Term 3, 2009 from the end of school Friday until the commencement of school on Monday, commencing Friday 17 July 2009 (save that on that day the time commence at 6.30pm as it is [Y]’s birthday);
(ii)from the commencement of Term 4, 2009 from the end of school Thursday until the commencement of school on Monday;
(iii)from the commencement of Term 1, 2010 and thereafter, from the end of school Thursday to the commencement of school on Tuesday;
(b)Provided the Husband is in substantial attendance, and provided the Husband has given the Wife thirty (30) days written notice of his intention to spend time with the children:
(i)during school term holidays for one half of the school term holidays, by agreement, and in default of agreement the second half of all school term holidays in 2009 and alternate years thereafter, and the first half of all school term holiday periods in 2010, and alternate years thereafter;
(ii)during the long summer holidays for one half of the long summer holidays by agreement, and in default of agreement the second half of the long summer holidays in 2009/10 and alternate years thereafter, and the first half of the long summer holidays in 2010/11, and alternate years thereafter with such time to be subject to Order (iii) below;
(iii)from 3pm Christmas Day until 3pm Boxing Day…

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 Ryder & Roby

Details

AGLC: Ryder & Roby [2009] FMCAfam 416
Case: [2009] FMCAfam 416
Decision Date: 24 June 2009

CaseChat Overview and Summary

In the case of Ryder & Roby, the primary dispute was between the husband and wife regarding the arrangements for the care, welfare, and development of their two children, [X] and [Y]. The Family Court of Australia was tasked with determining the parenting arrangements that would be in the best interests of the children. The court was required to decide the allocation of parental responsibility and the specific visitation and communication schedules between the children and their father, taking into account the welfare and development needs of the children.

The court considered various factors, including the need for stability, the importance of both parents in the children's lives, and the children's preferences as expressed through their statements and the Family Consultant's report. The court also examined the capacity of each parent to provide for the children's physical, emotional, and educational needs. Ultimately, the court found that equal shared parental responsibility was in the best interests of the children, and that the children should primarily reside with the wife, with detailed provisions for the father's visitation rights and responsibilities. The court also outlined specific communication and information-sharing obligations between the parents, and imposed restrictions on any negative conduct towards the other parent in the presence of the children.

The court's orders included equal shared parental responsibility for the children, with the children primarily residing with the wife. The husband was granted specific visitation rights, including alternate weekend visits during school terms, half of the school term holidays, and half of the long summer holidays, as well as specific periods around Christmas and on special occasions. The orders also detailed communication arrangements, including telephone and internet contact, and mandated the use of a communication book to facilitate information sharing between the parents. Additionally, the court required both parents to participate in a post-separation parenting program and to attend Family Dispute Resolution before initiating further legal proceedings regarding the children.

The final orders of the court included detailed provisions for the children's residence and time-sharing with their father, specific communication and information-sharing requirements, and restrictions on any negative conduct towards the other parent in the presence of the children. The court also noted that the particulars of the obligations and consequences of non-compliance with the orders were set out in an attached Fact Sheet, which was incorporated into the orders.

Orders

Orders of the court

The parties have equal shared parental responsibility for the long term care, welfare and development of the children, [X] born in 1999 (“[X]”) and [Y] born in 2001 (“[Y]”) (collectively “the children”).

The children live with the Wife.

The children spend time and communicate with the Husband as follows:

(a) During school terms each alternate weekend:

(i) from the commencement of Term 3, 2009 from the end of school Friday until the commencement of school on Monday, commencing Friday 17 July 2009 (save that on that day the time commence at 6.30pm as it is [Y]’s birthday);

(ii) from the commencement of Term 4, 2009 from the end of school Thursday until the commencement of school on Monday;

(iii) from the commencement of Term 1, 2010 and thereafter, from the end of school Thursday to the commencement of school on Tuesday;

(b) Provided the Husband is in substantial attendance, and provided the Husband has given the Wife thirty (30) days written notice of his intention to spend time with the children:

(i) during school term holidays for one half of the school term holidays, by agreement, and in default of agreement the second half of all school term holidays in 2009 and alternate years thereafter, and the first half of all school term holiday periods in 2010, and alternate years thereafter;

(ii) during the long summer holidays for one half of the long summer holidays by agreement, and in default of agreement the second half of the long summer holidays in 2009/10 and alternate years thereafter, and the first half of the long summer holidays in 2010/11, and alternate years thereafter with such time to be subject to Order (iii) below;

(iii) from 3pm Christmas Day until 3pm Boxing Day in 2009 and each alternate year thereafter, and from 3pm Christmas Eve until 3pm Christmas Day in 2010 and each alternate year thereafter;

(c) On the children's birthdays, the Husband's birthday and Father's Day by agreement and in default of agreement for a period of three (3) hours on school days and for a period of six (6) hours on non school days; and

(d) By telephone or internet twice weekly (when they are not otherwise spending time with the Husband).

Notwithstanding any other provisions of these orders the children spend time with the Wife as follows:

(a) From 3pm on Christmas Eve in 2009 until 3pm Christmas Day in 2009, and each alternate year thereafter and from 3pm on Christmas Day in 2010 until 3pm Boxing Day in 2010, and each alternate year thereafter; and

(b) On the children’s birthdays, Mother's Day and the Wife's birthday for a period of three (3) hours on school days and for a period of six (6) hours on non school days.

In the event that changeover occurs on a non school day the Wife will be responsible for delivering the children to the Husband's home at the commencement of the Husband's time and the Husband will deliver the children to the Wife's home at the conclusion of his time with the children.

Each of the parties:

(a) Advise and keep the other advised of their current residential address and telephone number;

(b) Advise and keep the other advised of any medical or health issue suffered or experienced by the children when the children are in his or her care;

(c) Authorise the children's schools and kindergarten to provide school reports, photograph order forms, memoranda and like documents to the other;

(d) Be entitled to attend school interviews, sports days and events which parents would normally attend; and

(e) Keep one another informed about the children's activities, education and development.

Unless otherwise agreed in writing, the Wife obtain and the parties maintain a communication book to travel with the children between the household of each parent.

The parties, their servants and agents be and are hereby restrained from denigrating or abusing the other to or in the presence or hearing of the children.

Each party participate forthwith in a post separation parenting program.

10.

Should the parties have difficulty resolving issues in relation to the children they will attend upon Family Dispute Resolution in an attempt to resolve those issues prior to issuing proceedings.

11.

All extant applications be otherwise dismissed.

AND THE COURT NOTES:

A. Pursuant to s.65DA(2) and s.62B, 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 hereto 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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