FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SABENS & TADKIN | [2010] FMCAfam 481 |
| FAMILY LAW – Children – relocation – application to relocate child’s residence granted. |
| Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 60CG, 60DAA, 61B, 61C, 61DA, 65C, 65D, 65DA, 65DAA, 65DAC Evidence Act 1995 (Cth), s.140 |
| B v B (Re Jurisdiction) (2003) FLC ¶93-136 D & D [2005] FamCA 365 M v M [1988] HCA 68; (1988) 166 CLR 69; (1988) FLC ¶91-979 Marsden and Winch (No. 3) [2007] FamCA 1364 MRR v GR [2010] HCA 4 Mulvany v Lane [2009] FamCA 76 N and S and the Separate Representative [1996] FamCA unrep925; (1996) ¶92-655 Sampson v Hartnett (No. 10) [2007] FamCA 1365 U v U (2002) 211 CLR 238; (2002) FLC ¶93-112 Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286 |
| Applicant: | MS SABENS |
| Respondent: | MR TADKIN |
| File Number: | SYC 7333 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 4 December 2009 |
| Date of Last Submission: | 4 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 19 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Warne |
| Counsel for the Respondent: | Mr Gilbert |
ORDERS
That the parties have equal shared parental responsibility for the child.
That the child live with the mother.
That the mother be permitted to relocate the residence of the child to South Australia.
That until the mother and child relocate to South Australia, the child spend time with the father as follows:
(a)Every Tuesday from 3:30pm to 6:00pm;
(b)Every Sunday from 10:00am to 6:00pm;
(c)Other times as agreed between the parties.
That upon the mother and child relocating to South Australia the child spend time with the father as follows:
(a)For five consecutive days during three South Australia gazetted school holiday periods each year, in Sydney, from 10am to 6pm each day. The mother will give the father four weeks notice of her intention to bring the child to Sydney and the father is to confirm within seven days that he will be available to spend time with the child. In the event that the father is not available to spend time with the child for at least three days then the mother is not required to bring the child to Sydney for that period.
(b)In the event that the mother is in Sydney for any reason other than to facilitate the child spending time with the father in accordance with 5a, the child shall spend time with the father in Sydney for three days, or on each day that the mother is in Sydney if she is in Sydney for less than three days, from 10am to 6pm.
(c)Should the father be in Adelaide or any place closer to the mother’s residence than Adelaide, the child will spend time with the father for six hours at times agreed between the parties on each weekend day for a period not exceeding three consecutive weekends and for hours at times agreed between the parties on Tuesday and Thursday for a period not…
Continue reading Sabens and Tadkin
Sign in free to access the full text
- AGLC
- Sabens and Tadkin [2010] FMCAfam 481
- Case
- [2010] FMCAfam 481
- Decision Date
CaseChat Overview and Summary
The court had to decide several key issues, including the allocation of parental responsibility, the primary residence of the child, the relocation of the child to another state, and the detailed arrangements for the child’s contact with each parent. This included determining the frequency and duration of visits, the logistics of travel between the parents' residences, and the responsibilities of each parent in terms of the child's care and communication. The court also had to address the parents' conduct and communication towards each other, particularly in relation to the child, and the necessity for certain restrictions and guidelines to protect the child’s welfare.
In reaching its decision, the court considered the best interests of the child as the paramount consideration. It determined that equal shared parental responsibility was in the child's best interests, allowing both parents to contribute to significant decisions about the child's welfare. The court concluded that the child should live with the mother, who planned to relocate to South Australia. The court set out detailed and specific arrangements for the father's contact with the child, taking into account the geographical distance between the parents' residences and the need to facilitate meaningful and regular contact. The court imposed various conditions to ensure the child's safety, health, and emotional well-being, and to manage the parents' interactions with each other.
The court made orders for equal shared parental responsibility, the child's residence with the mother, and specific and detailed contact arrangements for the father. The orders also included provisions for communication between the parents, restrictions on their conduct, and responsibilities regarding the child's care and welfare.
Orders
Orders of the court
1.
That the parties have equal shared parental responsibility for the child.
2.
That the child live with the mother.
3.
That the mother be permitted to relocate the residence of the child to South Australia.
4.
That until the mother and child relocate to South Australia, the child spend time with the father as follows:
(a) Every Tuesday from 3:30pm to 6:00pm;
(b) Every Sunday from 10:00am to 6:00pm;
(c) Other times as agreed between the parties.
5.
That upon the mother and child relocating to South Australia the child spend time with the father as follows:
(a) For five consecutive days during three South Australia gazetted school holiday periods each year, in Sydney, from 10am to 6pm each day. The mother will give the father four weeks notice of her intention to bring the child to Sydney and the father is to confirm within seven days that he will be available to spend time with the child. In the event that the father is not available to spend time with the child for at least three days then the mother is not required to bring the child to Sydney for that period.
(b) In the event that the mother is in Sydney for any reason other than to facilitate the child spending time with the father in accordance with 5a, the child shall spend time with the father in Sydney for three days, or on each day that the mother is in Sydney if she is in Sydney for less than three days, from 10am to 6pm.
(c) Should the father be in Adelaide or any place closer to the mother’s residence than Adelaide, the child will spend time with the father for six hours at times agreed between the parties on each weekend day for a period not exceeding three consecutive weekends and for hours at times agreed between the parties on Tuesday and Thursday for a period not exceeding three consecutive weeks. The father must give the mother two weeks notice of his intention to spend time with the child in accordance with this order.
(d) Should the father be in Adelaide or any place closer to the mother’s residence than Adelaide on the child’s birthday or on Father’s Day he will spend time with the child on the child’s birthday for at least two hours if it is a week day and four hours if it is a weekend day and he will spend time with the child on Father’s day for six hours at times agreed between the parties. The father must give the mother two weeks notice of his intention to spend time with the child in accordance with this order.
(e) Other times as agreed between the parties.
6.
That for the purpose of the time the child spends with the father in accordance with order 5a, the mother is to be responsible for the cost for the child and an accompanying adult to travel to Sydney and back to Adelaide.
7.
That for the purpose of any time the father spends with the child in South Australia, the father is to collect the child from the mother at a place agreed between the parties and within one hour travel of the mother’s residence at the beginning of his time with the child and is to return the child to the mother at the same place at the conclusion of his time with the child.
8.
That the father is to have the following communication with the child:
(a) Liberal and flexible telephone communication;
(b) Communication by way of letters, mail and gifts.
9.
That each party is to notify the other as soon as practicable in the case of any medical or other emergency affecting the child or in the event that the child is hospitalised.
10.
That each party is to refrain from making critical or derogatory remarks about the other party in the presence and/or hearing of the child and each party is to do all things necessary to ensure that no third party makes critical or derogatory remarks about the other party in the presence and/or hearing of the child.
11.
That for the purposes of communicating information between the parties the mother and the father shall:
(a) Restrict any conversations in the presence or hearing of the child to issues about the day to day arrangements under these orders or issues pertaining to the child’s welfare and shall refrain from having disputes in the presence or hearing of the child;
(b) Communicate by mobile telephone about all other matters including any disputes in relation to parenting matters.
12.
That if the father transports the child in a motor vehicle he is to ensure that the child travels in a car seat that is age-appropriate and safely secured at all times.
13.
The mother is to provide the father with a written list of foods that the child is allergic to or is otherwise not to eat and the father is to ensure the child does not eat any foods on that list.
14.
Each party is hereby restrained from using profanities in the presence and/or hearing of the child.
15.
The father is responsible for providing and shall ensure he has adequate and appropriate clothes, food, nappies and toiletries for the child when the child is in his care.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.