SALISBURY & HUTCHINS - [2009] FMCAfam 978

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SALISBURY & HUTCHINS

[2009] FMCAfam 978

FAMILY LAW – Child aged 3 – interim parenting arrangements – unilateral relocation – mother has moved child’s place of residence from Adelaide to [P] – father opposed to move – equal shard parental responsibility – whether relocation principles apply given the extent of the move sought to be legitimised – best interests – consideration of section 60CC factors.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286
Campbell & Spalding (unreported) Full Court of the Family Court delivered 15 May 1998
B & B: Family Law Reform Act 1975 (1997) FLC 92-755
Morgan & Miles [2007] FamCA 1230
Godfrey v Saunders 208 FLR 287
U v U FLC 93-112
D & SV (2003) FLC 93-137
Fragomeli & Fragomeli (1993) FLC 92-393

AMS v AIF (1999) FLC 92-852

Applicant:

MR SALISBURY

Respondent:

MS HUTCHINS

File Number:

ADC 3241 of 2009

Judgment of:

Brown FM

Hearing date:

11 September 2009

Date of Last Submission:

11 September 2009

Delivered at:

Adelaide

Delivered on:

17 September 2009

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Georgiadis Lawyers

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Spencer Gulf Law

ORDERS

The mother return the child [X] born [in] 2006 (hereinafter referred to as “the child”) to the metropolitan area of Adelaide at her own expense, by 4:00pm on 25 September 2009.

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibility for the child.
In the event the mother elects to return to live in the Adelaide metropolitan area, pending the final hearing of this matter, the child live with the mother and spend time with the father as follows:
(a)On alternate weekends commencing 26 September 2009 from 10:00am Saturday until 6:00pm Sunday (or 6:00pm Monday in the event that Monday is a public holiday); and
(b)every second Sunday commencing 3 October 2009 from 10:00am to 5:30pm;
(c)At any other times and on any other occasions as agreed between the parties.
The parties exchange the child at a location to be agreed between them but failing agreement at the McDonald’s Restaurant on the corner of [address omitted].
In the event the mother elects not to return to live in Adelaide permanently, pending the final hearing of this matter, the child live with the father and spend time with the mother at times to be agreed between the parties or as otherwise directed by the court but, in any event, the child spend alternate weekends until the final determination of this matter with the mother in [P] between 10:00am Saturday until 4:00pm Sunday.
In the event the mother fails to comply with order 1 hereof a recovery order issue in the normal form authorising the Marshall of the court and officers of the Australian Federal Police to locate the child and deliver him to the father.
An injunction issue and each party be restrained from changing the child’s place of…

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: SALISBURY & HUTCHINS [2009] FMCAfam 978
Case: [2009] FMCAfam 978
Decision Date: 17 September 2009

CaseChat Overview and Summary

The matter before the court involved Salisbury, the father, and Hutchins, the mother, of a child born in 2006. The dispute centred on the child's residence and the arrangements for the child's care and welfare. The case was heard in the Federal Magistrates Court of Australia. The father sought an order for the child to return to the Adelaide metropolitan area, and for the parties to share parental responsibility equally. The mother contested the father's application and sought orders for the child to reside with her and for specific arrangements for the child's care and welfare.

The legal issues before the court included the determination of the child's residence, the allocation of parental responsibility, and the arrangements for the child's care and welfare. The court was required to consider the best interests of the child in making these decisions, taking into account the wishes of the child, the child's maturity and level of understanding, and the matters set out in sections 60CC, 61DA, and 65DAA of the Family Law Act 1975.

The court found that it was in the best interests of the child to return to the Adelaide metropolitan area and for the parties to share parental responsibility equally. The court ordered that the child return to Adelaide by a specified date and that the parties exchange the child at a location to be agreed upon. The court also ordered that the parties attend a family dispute resolution conference to discuss arrangements for school holidays and special occasions. The court further ordered that the parties attend a family report conference and that a family report be prepared and released prior to the final hearing. The matter was fixed for final hearing and further consideration was adjourned for trial directions.

The court issued orders for the child to return to Adelaide, for the parties to share parental responsibility equally, and for specific arrangements for the child's care and welfare. The court also issued an injunction to prevent the parties from changing the child's place of residence without the other party's consent. The matter was fixed for final hearing and further consideration was adjourned for trial directions.

Orders

Orders of the court

The mother return the child [X] born [in] 2006 (hereinafter referred to as “the child”) to the metropolitan area of Adelaide at her own expense, by 4:00pm on 25 September 2009.

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibility for the child.

In the event the mother elects to return to live in the Adelaide metropolitan area, pending the final hearing of this matter, the child live with the mother and spend time with the father as follows:

(a) On alternate weekends commencing 26 September 2009 from 10:00am Saturday until 6:00pm Sunday (or 6:00pm Monday in the event that Monday is a public holiday); and

(b) every second Sunday commencing 3 October 2009 from 10:00am to 5:30pm;

The parties exchange the child at a location to be agreed between them but failing agreement at the McDonald’s Restaurant on the corner of [address omitted].

In the event the mother elects not to return to live in Adelaide permanently, pending the final hearing of this matter, the child live with the father and spend time with the mother at times to be agreed between the parties or as otherwise directed by the court but, in any event, the child spend alternate weekends until the final determination of this matter with the mother in [P] between 10:00am Saturday until 4:00pm Sunday.

In the event the mother fails to comply with order 1 hereof a recovery order issue in the normal form authorising the Marshall of the court and officers of the Australian Federal Police to locate the child and deliver him to the father.

An injunction issue and each party be restrained from changing the child’s place of residence to one outside the municipal area of Adelaide without the written consent of the other.

Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 23 October 2009 at 3:30pm, to discuss other arrangements for school holidays and special occasions, particularly Christmas, and the care, welfare and development of the child [X] born [in] 2006 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

Pursuant to section 62G(2) of the Family Law Act (1975) the parties and the child of the relationship attend upon a Regulation 7 practitioner nominated by the Dispute Resolution Co-ordinator, Federal Magistrates Court of Australia, on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released at least six (6) weeks prior to trial.

10.

The Family Report to deal with the following matters:

(a) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

(b) the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

(c) any other matters that the Family Consultant/assessor considers important to the welfare or best interests of the said child.

11.

The matter is fixed for final hearing before Federal Magistrate Brown on 14 & 15 April 2010 at 10:00am NOTING 2 days allowed.

12.

That further consideration of this matter is adjourned to 8 December 2009 at 9:30am for trial directions.

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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