SADAT & LABERGE - [2020] FCCA 1230

FEDERAL CIRCUIT COURT OF AUSTRALIA

SADAT & LABERGE

[2020] FCCA 1230

Catchwords:
FAMILY LAW – Parenting – interim relocation application – where Mother seeks to relocate with children – Mother’s residence being sold and minimal job prospects in current town – where Father’s own actions likely to have worsened Mother’s job prospects in current town – where children have strong relationship with both parents – compared to current spend time with arrangements little change in actual time spent between children and the Father following the relocation – relocation with children permitted – matter transferred to local circuit.

Legislation:

Family Law Act 1975 (Cth), s.60CC(3)(d) & (e)

Cases cited:

AMS v AIF (1999) 199 CLR 160

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey & Sanders [2007] FamCA 102
Morgan v Miles (2007) 38 Fam LR 275

Sigley v Evor (2011) 44 Fam LR 439

Applicant:

MR SADAT

Respondent:

MS LABERGE

File Number:

CAC 285 of 2019

Judgment of:

Judge WJ Neville

Hearing date:

21 April 2020

Date of Last Submission:

21 April 2020

Delivered at:

Canberra

Delivered on:

21 May 2020

REPRESENTATION

Solicitors for the Applicant:

D. N. Wilson & Co

Counsel for the Respondent:

Ms M. Davis

Solicitors for the Respondent:

Gordon Garling Moffitt Lawyers

Solicitors for the Independent Children’s Lawyer:

Wagga Family Lawyers

ORDERS

UNTIL FURTHER ORDER, THE COURT ORDERS BY CONSENT THAT:

The parties have equal shared parental responsibility for the children, X (born: 2008), Y (born: 2012) and Z (born: 2014) (“the children”).

UNTIL FURTHER ORDER, THE COURT FURTHER ORDERS THAT:

All previous parenting Orders be discharged.
The children live with the Mother.
The Mother be permitted to relocate forthwith with the children from the Town A area to the Town B area.
Once she has relocated, and notwithstanding Order 1, the Mother is permitted to change the enrolment of the children’s school from Town A to school(s) in the Town B area.
Unless otherwise agreed in writing between the parties, the children are to spend time with the Father as follows:
From now until two months after the Mother relocates with the children:
(a)Each alternate weekend from 4:00pm or after school on the Friday to 9:00am or the commencement of school on Monday in Week 1;
(b)By telephone or Facetime or other similar application on not less than two occasions per week at 7:30pm, with the Father to initiate the call;
(c)During Term 1, 2 and 3 gazetted school holidays, with such time to commence at the conclusion of school to the following Wednesday at 4:00pm.
From two months after the Mother relocates with the children onwards:
(d)Every third weekend from 6:00pm on the Friday to 5:00pm on the Sunday;
(e)By telephone or Facetime or other similar application on not less than three occasions per week at 7:30pm, with the Father to initiate the call;
(f)For the first half of Term 1, 2 and 3 gazetted school holidays, with such time to commence at 10:00am on the first Saturday of the school holidays and conclude at…

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 SADAT & LABERGE

Details

AGLC: SADAT & LABERGE [2020] FCCA 1230
Case: [2020] FCCA 1230
Decision Date: 21 May 2020

CaseChat Overview and Summary

In the matter of *Sadat & Laberge*, heard before Judge WJ Neville, the dispute concerned an interim relocation application by the Mother. The Mother sought permission to relocate with the parties' three children, born in 2008, 2012, and 2014, from the Town A area to the Town B area. The application was prompted by the sale of the Mother's residence and her limited job prospects in Town A, with the Father's actions potentially exacerbating these prospects. The court was also presented with evidence of the children's strong relationships with both parents.

The central legal issue before the court was whether to permit the Mother to relocate with the children, and if so, what interim parenting arrangements should be put in place to facilitate the children spending time with the Father. This involved assessing the best interests of the children, considering the practicalities of the proposed relocation, and balancing the children's relationships with each parent. The court was required to determine if the proposed relocation would result in a significant change to the actual time the children spent with the Father, and if any such change was acceptable in the context of the children's overall welfare.

The court's reasoning led to the conclusion that the relocation should be permitted. It was noted that the proposed arrangements would not result in a substantial change to the actual time the children spent with the Father. The court made orders by consent, discharging previous orders and establishing equal shared parental responsibility. The children were ordered to live with the Mother, and she was permitted to relocate with them forthwith. The Mother was also authorised to change the children's school enrolment to the Town B area upon relocation. Detailed provisions were made for the children to spend time with the Father, both in the initial period following relocation and thereafter, with specific arrangements for weekends, telephone contact, and school holidays. The orders also included provisions regarding changeovers, ensuring the Father's Day and Mother's Day weekends, and prohibitions on discussing proceedings or making derogatory comments in the presence of the children, as well as restrictions on alcohol consumption and vehicle safety. The matter was subsequently transferred to the Dubbo circuit of the Federal Circuit Court of Australia.

Orders

Orders of the court

UNTIL FURTHER ORDER, THE COURT ORDERS BY CONSENT THAT:

The parties have equal shared parental responsibility for the children, X (born: 2008), Y (born: 2012) and Z (born: 2014) (“the children”).

UNTIL FURTHER ORDER, THE COURT FURTHER ORDERS THAT:

All previous parenting Orders be discharged.

The children live with the Mother.

The Mother be permitted to relocate forthwith with the children from the Town A area to the Town B area.

Once she has relocated, and notwithstanding Order 1, the Mother is permitted to change the enrolment of the children’s school from Town A to school(s) in the Town B area.

Unless otherwise agreed in writing between the parties, the children are to spend time with the Father as follows:

From now until two months after the Mother relocates with the children:

(a) Each alternate weekend from 4:00pm or after school on the Friday to 9:00am or the commencement of school on Monday in Week 1;

(b) By telephone or Facetime or other similar application on not less than two occasions per week at 7:30pm, with the Father to initiate the call;

(c) During Term 1, 2 and 3 gazetted school holidays, with such time to commence at the conclusion of school to the following Wednesday at 4:00pm.

From two months after the Mother relocates with the children onwards:

(d) Every third weekend from 6:00pm on the Friday to 5:00pm on the Sunday;

(e) By telephone or Facetime or other similar application on not less than three occasions per week at 7:30pm, with the Father to initiate the call;

(f) For the first half of Term 1, 2 and 3 gazetted school holidays, with such time to commence at 10:00am on the first Saturday of the school holidays and conclude at 10:00am on the middle Saturday of the holidays;

(g) For Term 4 school holidays, for two blocks of time:

(i) In odd numbered years from 6:00pm on the day school concludes to 6:00pm Boxing day, and from 10 January to 20 January; and

(ii) In even numbered years from 6:00pm Boxing Day to 2 January, and from 10 January to 20 January.

Unless otherwise agreed between the parties in writing, changeover is to occur at Town C McDonald’s at the commencement of the children spending time with the Father, and at Town D McDonald’s at the conclusion of the children spending time with the Father.

The time in Order 6 be varied to ensure the children spend the Father’s Day weekend in the Father’s care, and the Mother’s Day weekend in the Mother’s care.

The parties be restrained from discussing these proceedings in the presence or hearing of the children, and are to do everything possible to ensure that others do not do so.

10.

The parties be restrained from making derogatory comments about the other party or their significant other, in the presence or hearing or the children, and are to do everything possible to ensure that others do not do so.

11.

The parties be restrained from posting any derogatory comments about the other party or their significant other on any social media platform or medium.

12.

The parties be restrained from consuming alcohol over the legal driving limit or consuming prescribed medication above any prescribed quantity whilst the children are in their care.

13.

At all times, the parties ensure that the children are properly restrained in any moving motor vehicle.

14.

Each party keep the other informed of any medical emergency in relation to the children.

15.

These Orders act as an authority for the parties to access any information to which parents would ordinarily be entitled from the following:

(a) The children’s treating medical or mental health professions;

(b) The children’s school or other education providers, including after school care and tutors; and

16.

In the event the Father cannot spent time with the children due to his work commitments, the children are to be returned to the care of the Mother.

17.

The matter be transferred to the Dubbo circuit of the Federal Circuit Court of Australia.

18.

The matter be adjourned for mention or further directions on a date and time to be advised in the Dubbo circuit.

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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