Sables and Edmondson (No.2) - [2018] FCCA 1800

FEDERAL CIRCUIT COURT OF AUSTRALIA

SABLES & EDMONDSON (No.2)

[2018] FCCA 1800

Catchwords:
FAMILY LAW – Parenting – additional Orders sought following final Orders made in 2015 following Mother’s limited-term posting to the (country omitted) – limited issues regarding “additional” time with sought by the Father and issues regarding the child’s travel to and from Australia.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(3)(e)

Cases cited:

Edmondson & Sables [2015] FCCA 3367

Applicant:

MS SABLES

First Respondent:	MR EDMONDSON
File Number:	PAC 457 of 2013

Judgment of:

Judge Neville

Hearing date:

10 November 2017

Date of Last Submission:

22 December 2017

Delivered at:

Canberra

Delivered on:

6 July 2018

REPRESENTATION

Solicitors for the Applicant:	Barker & Barker, Canberra
Solicitors for the Respondents:	G & D Lawyers, Surry Hills, NSW

THE COURT ORDERS THAT:

The Mother be permitted to take the child [X] (born: 2009) outside of Australia to reside in (country omitted) from January 2018 for the period of the Mother's posting.
During the period of the Mother's posting to (country omitted) the father and the child communicate by skype or other telecommunication methods at two agreed times per week and failing agreement at 6.00pm Honiara time each Tuesday and Sunday.
The child be at liberty to contact the father by skype or other telecommunications at any reasonable time the child wishes and that the Mother do all things necessary to facilitate such communications.
The child spend time with the father three times per year for periods of 12 days with two of those occasions being in Sydney.
The child travel to Sydney by accompanied travel, the cost of which shall be borne by the Mother.
The third time the child spends with the Father shall take place in a location to which there are direct flights from (country omitted), for which purpose the child will travel by way of unaccompanied travel at the cost of the Mother.
If the Father proposes to travel to (country omitted) he provide the Mother with not less than 21 days' notice of such travel.
During the period of the Mother's posting the Mother is permitted to cause the child to travel to countries other than (country omitted) upon the Mother giving prior written notice to the Father, such notice to be provided not less than 21 days, or such other agreed period of time, prior to the date of travel, unless such period of notice is not possible for reasons outside the control of the Mother.
If the Father travels to (country omitted), the Father and the child shall spend such time together as is agreed, but failing agreement for periods of up to 7 days, provided that no more than 5 of such days be days on which the child is scheduled to attend school.
The parties are to bear their own costs.

IT IS NOTED that publication of this judgment under the pseudonym Sables & Edmondson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT…

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 Sables and Edmondson (No.2)

Details

AGLC: Sables and Edmondson (No.2) [2018] FCCA 1800
Case: [2018] FCCA 1800
Decision Date: 6 July 2018

CaseChat Overview and Summary

In *Sables and Edmondson (No.2)*, Judge Neville considered an application by the Mother for permission to take the child, [X], born in 2009, to reside outside of Australia in a specified country for the duration of her posting there, commencing in January 2018. The Father opposed this application.

The central legal issue before the court was whether it was in the best interests of the child for him to relocate overseas with his Mother for an extended period, and if so, what arrangements should be put in place to ensure the child maintained a meaningful relationship with his Father. This involved determining appropriate communication protocols, visitation schedules, and the allocation of travel costs associated with these arrangements.

Judge Neville's reasoning focused on balancing the Mother's need to relocate for her posting with the child's right to maintain a relationship with his Father. The court ordered that the Mother be permitted to take the child to reside overseas for the period of her posting, subject to detailed provisions for communication and time spent with the Father. These included regular telecommunication, three annual periods of 12 days with the Father (two in Sydney), and provisions for accompanied and unaccompanied travel at the Mother's expense. The Mother was also permitted to travel with the child to other countries with prior written notice to the Father.

The court made specific orders regarding communication, including Skype or other telecommunication methods at agreed times or at 6:00 pm Honiara time each Tuesday and Sunday, and liberty for the child to contact the Father at any reasonable time. The Father was also required to provide 21 days' notice if he proposed to travel to the country of the Mother's posting. The parties were ordered to bear their own costs.

Orders

Orders of the court

The Mother be permitted to take the child [X] (born: 2009) outside of Australia to reside in (country omitted) from January 2018 for the period of the Mother's posting.

During the period of the Mother's posting to (country omitted) the father and the child communicate by skype or other telecommunication methods at two agreed times per week and failing agreement at 6.00pm Honiara time each Tuesday and Sunday.

The child be at liberty to contact the father by skype or other telecommunications at any reasonable time the child wishes and that the Mother do all things necessary to facilitate such communications.

The child spend time with the father three times per year for periods of 12 days with two of those occasions being in Sydney.

The child travel to Sydney by accompanied travel, the cost of which shall be borne by the Mother.

The third time the child spends with the Father shall take place in a location to which there are direct flights from (country omitted), for which purpose the child will travel by way of unaccompanied travel at the cost of the Mother.

If the Father proposes to travel to (country omitted) he provide the Mother with not less than 21 days' notice of such travel.

During the period of the Mother's posting the Mother is permitted to cause the child to travel to countries other than (country omitted) upon the Mother giving prior written notice to the Father, such notice to be provided not less than 21 days, or such other agreed period of time, prior to the date of travel, unless such period of notice is not possible for reasons outside the control of the Mother.

If the Father travels to (country omitted), the Father and the child shall spend such time together as is agreed, but failing agreement for periods of up to 7 days, provided that no more than 5 of such days be days on which the child is scheduled to attend school.

10.

The parties are to bear their own costs.

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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