SACHA & SACHA - [2020] FamCA 417

FAMILY COURT OF AUSTRALIA

SACHA & SACHA

[2020] FamCA 417

FAMILY LAW – CHILDREN – International relocation – Where the mother seeks orders providing for her to relocate the children’s residence to Country F – Where the Independent Children’s Lawyer supports the mother’s Application – Where the father opposed the mother’s Application but has disengaged from the proceedings – Where the mother has attempted to facilitate contact between the father and the children – Where the father has not spent time with the children since January 2018 – Where the extended maternal family reside in Country F – Where the mother has researched facilities available for herself and the children in Country F – Whether relocating to Country F is in the best interests of the children – Orders made in accordance with the Independent Children’s Lawyer’s Minute of Order in favour of the mother relocating with the children.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 64B(2), 65DAA, 65DAC.

Adamson & Adamson (2014) FLC 93-622
AMS v AIF (1999) 199 CLR 160
B & B (1997) FLC 92-755
Blinko & Blinko [2015] FamCAFC 146
Bolitho & Cohen (2005) FLC 93-224
D & SV (2003) FLC 93-137
Godfrey v Sanders (2007) FLR 287
Jurchenko & Foster (2014) FLC 93-598
Malcolm & Monroe (2011) FLC 93-460
Mazorski v Albright (2007) 37 Fam LR 518
Oswald & Karrington (2016) FLC 93-726
Re: TC and JC (Children: Relocation) [2013] EWHC 292
Sampson & Hartnett (No. 10) (2007) FLC 93-350
Sayer & Radcliffe (2012) 48 Fam LR 298
Sigley v Evor (2011) 44 Fam LR 439
U v U (2002) 211 CLR 238
Walker & Walker [2013] FCWA 85
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Mr Sacha

RESPONDENT:

Ms Sacha

INDEPENDENT CHILDREN’S LAWYER:

Kathryn Renshall Lawyers

FILE NUMBER:

SYC

1281

2017

DATE DELIVERED:

28 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

14 May 2020

REPRESENTATION

NO APPEARANCE BY OR ON BEHALF OF THE APPLICANT.

THE RESPONDENT APPEARING IN PERSON.

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kathryn Renshall Lawyers Pty Ltd

Orders

That all previous parenting Orders be discharged.
That Ms Sacha (“the mother”) have sole parental responsibility for X born … 2013 and Y born … 2015 (collectively referred to as “the children”).
That the children live with the mother.
That, within 28 days of the date of these Orders, the mother be permitted to permanently depart the Commonwealth of Australia and internationally relocate with the children to live in Country F.
That the names of the children are to be removed from the Family Law Watchlist.
The mother is to provide a copy of these Orders to any school which the children may, from time to time, attend.
That the children spend time with the father as agreed between the parties and failing agreement, that for the first Saturday of each month after the mother and the children have relocated to Country F, the mother shall initiate a Skype/video call…

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.

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Details

AGLC: SACHA & SACHA [2020] FamCA 417
Case: [2020] FamCA 417
Decision Date: 28 May 2020

CaseChat Overview and Summary

This matter concerned parenting orders made by McClelland DCJ in the Federal Circuit Court of Australia. The dispute involved the mother, Ms Sacha, seeking to relocate internationally with the parties' two children, X and Y, and the father's opposition to this proposed relocation.

The primary legal issue before the court was whether to discharge existing parenting orders and, if so, to make new orders that would permit the mother to have sole parental responsibility for the children, allow them to live with her, and permit her to permanently depart Australia and relocate with them to Country F. The court was also required to consider the nature and extent of the children's future contact with the father.

McClelland DCJ reasoned that the proposed relocation was in the best interests of the children. The court discharged all previous parenting orders and made new orders granting the mother sole parental responsibility and the right for the children to live with her. Crucially, the court granted the mother permission to permanently depart Australia with the children within 28 days of the orders, to live in Country F. The children's names were to be removed from the Family Law Watchlist. The court also made detailed provisions for the children's future contact with the father, including electronic communication and regular email updates from the mother regarding the children's welfare, education, and development. The mother was also required to inform the father of any serious illness or injury sustained by the children.

Orders

Orders of the court

That all previous parenting Orders be discharged.

That Ms Sacha (“the mother”) have sole parental responsibility for X born … 2013 and Y born … 2015 (collectively referred to as “the children”).

That the children live with the mother.

That, within 28 days of the date of these Orders, the mother be permitted to permanently depart the Commonwealth of Australia and internationally relocate with the children to live in Country F.

That the names of the children are to be removed from the Family Law Watchlist.

The mother is to provide a copy of these Orders to any school which the children may, from time to time, attend.

That the children spend time with the father as agreed between the parties and failing agreement, that for the first Saturday of each month after the mother and the children have relocated to Country F, the mother shall initiate a Skype/video call to the father at 8.00am (Country F Time) for the purpose of the children having electronic communication with the father.

That no less than four (4) times a calendar year, the mother shall provide an email to the father in relation to the following:

(a) The children’s welfare, including medical/health issues, whether previously existing or newly arising, together with copies of any medical reports;

(b) The children’s education, including any reports or recommendations/advice from the children’s school;

(d) A current photograph of the children.

That the mother shall, as soon as practicable, inform the father, either by email or text message, of any serious illness or injury sustained by any of the children and further provide any particulars of treatment received with the name and address of the treatment provider and/or location at which the child is a patient.

10.

To the extent that it may be necessary, the mother has leave to provide a copy of these orders and accompanying reasons for judgment to any Australian or Country F’s Government Agency that may be concerned with the entitlement of the mother to travel with the children and/or for the mother to receive benefits and assistance in respect to the children and to assist the mother in discharging her responsibilities as the children’s primary carer.

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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