FAMILY COURT OF AUSTRALIA
| RYLAND & CRITTENDEN | [2017] FamCA 1104 |
| FAMILY LAW – CHILDREN – RELOCATION – Where the mother sought orders to relocate to the United Kingdom with the child – Where the father opposed the child relocating to the United Kingdom on the basis that it would adversely impact upon the child having a meaningful relationship with him – Where the mother has been the primary carer of the child – Where the mother was born in the UK and the father was born in Country C – Consideration of section 60CC factors – Unacceptable risk – Where the parties have a history of poor communication – Where the father has been verbally abusive towards the mother via text and email communications – Where the mother has suffered from mental health problems in Australia – Court finds that the parties should have equal shared parental responsibility of the child – Court finds that the mother would have greater support if she was to relocate to the United Kingdom – Court finds that there is no significant impediment to the father also relocating to the United Kingdom – Orders made permitting the mother to relocate with the child to the United Kingdom. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 64B, 65DAA |
| AMS v AIF (1999) 199 CLR 160 Burns v Burns (2000) 182 NSR (2d) 101 Cowley & Mendoza (2010) 43 Fam LR 436 Champness & Hanson (2009) FLC 93-407 In the Marriage of Cullen (1981) FLC 91-113 In the Marriage of Craven (1976) FLC 90-049 In the Marriage of Holmes (1988) FLC 91-918 In the Marriage of I and I (1995) FLC 92-604 Johnson and Page (2007) FLC 93-344 KAC v DJC [2013] EWHC 292 KB & TC [2005] FamCA 458 M v M (1988) 166 CLR 69 Malcolm & Monroe and Anor (2011) FLC 93-460 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Mazorski v Albright (2008) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 N and S and the Separate Representative (1996) FLC 92-655 Re Davis & Councillor (1981) 7 Fam LR 619 Sampson and Hartnett (No 10) (2007) FLC 93-350 Sayer & Radcliffe and Anor (2012) 48 Fam LR 298 Sealey & Archer [2008] FamCAFC 142. Sigley & Evor (2011) 44 Fam LR 439 Starr & Duggan [2009] FamCAFC 115 Thorpe v McCosker (1983) 8 Fam LR 964 Taylor & Barker (2007) FLC 93-345 U v U (2002) 211 CLR 238 |
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- AGLC
- Ryland and Crittenden [2017] FamCA 1104
- Case
- [2017] FamCA 1104
- Decision Date
CaseChat Overview and Summary
The court was required to determine the nature of parental responsibility, where the child would live, and whether to permit the mother to relocate the child to the United Kingdom. Further issues included the specific arrangements for the child's time with each parent, both before and after the relocation, including provisions for communication, travel costs, and the exchange of information regarding the child's well-being and education. The court also considered orders restraining derogatory comments about either parent in the child's presence.
McClelland J ordered that the parties have equal shared parental responsibility for the child. The child was ordered to live with the mother, and the mother was permitted to relocate the child to the United Kingdom. The orders then detailed extensive provisions for the child's time with the father, both prior to and following the relocation, with specific arrangements for holidays, communication, and travel costs. The court also made orders for the parties to keep each other informed of significant matters concerning the child and for the father to receive school reports. Finally, both parents were restrained from making derogatory statements about the other in the child's presence.
Orders
Orders of the court
THE COURT ORDERS THAT:
1.
That the parties have equal shared parental responsibility for the child, B born … 2013 (“the child”).
2.
That the child live with the mother.
3.
That the mother be permitted to relocate the child’s residence to the United Kingdom.
4.
That pending the child relocating to the United Kingdom, the child spend time with the father as follows:
4.1 Each Tuesday from 4.00pm to 7.00pm.
4.2 Each Sunday from 9.00am to 7.00pm.
5.
That upon the child relocating with the mother to the United Kingdom:
5.1 Until the child attains the age of 8 years, that the child spend time with the father in Australia as follows:
5.1.1 In the event the child moves to the United Kingdom on or before 28 February 2018, during the 2018 United Kingdom summer holiday period, for 3 blocks of 3 nights with a 2 night break in between each block, on condition that the father confirms with the mother, no later than 2 calendar months prior to the proposed travel, that he has secured accommodation resided in by only himself and any partner of his.
5.1.2 During the 2018/2019 Australian summer holiday period for 4 blocks of 4 days with a 2 day break in between each block (including Christmas Day), on the condition that the father confirms with the mother, no later than 2 calendar months prior to the proposed travel, that he has secured accommodation resided in by only himself and any partner of his.
5.1.3 Thereafter, each year during the United Kingdom summer holiday period for 4 blocks of 4 days with a 2 day break in between each block, on condition that the father confirms with the mother, no later than 2 calendar months prior to the proposed travel that he has secured accommodation resided in by only himself and any partner of his.
5.1.4 That in the event the father does not provide confirmation of his accommodation pursuant to 5.1.1 or 5.1.2 or 5.1.3 above, then the periods of time the child spends with him be day time periods from 9.00am to 7.00pm or such other times as agreed between the parties.
5.2 That upon the child attaining the age of 8 years, the child spend time with the father, in Australia, during the United Kingdom summer holidays each year for a block period of 4 weeks.
5.3 That the child spend time with the father in the United Kingdom as follows:
5.3.1 In the town in which the child lives at times to be agreed between the mother and father or, failing agreement:
5.3.1.1 on dates proposed by the father in writing at least 3 months in advance and provided that such dates do not coincide with school days once the child is of school age;
5.3.1.2 from 9.00am until 7.00pm on any 5 days (whether consecutive or non-consecutive) on up to 3 separate occasions each calendar year.
5.3.2 Such further or other time with the father in the United Kingdom or in Country C on terms as may be agreed between the parties from time to time.
5.4 The child communicate with the father via Skype or similar electronic communication each Saturday at 8.00pm (Australian Eastern time), or on such other regular day each week as may be agreed in writing between the parties from time to time in view of the child’s extracurricular activities or commitments after day care, pre-school or school as the case may be, with the father to initiate the call and the mother to ensure that the child is available to take the call.
5.5 The mother will facilitate any reasonable request by the child to have additional Skype time or other communication with the father.
6.
That the mother be responsible for and will pay for the costs of the child’s return air travel between the United Kingdom and Australia up to and including the United Kingdom summer holidays in 2022 and that thereafter the parties share equally in the child’s return air travel.
7.
The father may send cards, gifts and letters to the child and the mother will pass on to the child any cards, gifts and letters received from the father and addressed to the child.
8.
That upon the child relocating to the United Kingdom:
8.1 The mother will forthwith do all things necessary to set up capacity for the child to communicate with the father by Skype.
8.2 The mother will take all reasonable steps to make contact by telephone with the child’s paternal grandfather and invite him to meet the child.
9.
That the mother and the father will keep each other informed of:
9.1 Their current contact telephone number, Skype contact details, email and residential address, and any changes to these details.
9.2 Any significant injury or illness suffered by the child and any treatment or attention given to the child in relation to any health problems the child may have from time to time.
9.3 All school, extra-curricular and sporting activities in which the child is involved.
10.
That the father will be entitled to receive copies of all school reports and applications for school photographs from the child’s school and the mother will show or provide a copy of these orders to the principal of any school attended by the child and authorise the principal of the school to facilitate the implementation of this order.
11.
That in the event that the child’s school is not in a position to facilitate the implementation of order 10 above in favour of the father, the mother will provide a copy of each of the child’s school reports within 14 days of each report being issued to the mother. Further, the mother will forward a copy of the child’s school photograph each year if the father cannot obtain a copy directly from the school under order 10 above.
12.
That each party is restrained from making derogatory, disparaging and offensive statements about the other parent in the presence or hearing of the child.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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