Sampson and Walker - [2011] FMCAfam 819

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAMPSON & WALKER

[2011] FMCAfam 819

FAMILY LAW – Children – unilateral relocation by mother – interim change of residence.

Family Law Act 1975, ss.11F, 60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAB, 65L

Applicant:

MR SAMPSON

Respondent:

MS WALKER

File Number:

BRC 8581 of 2009

Judgment of:

Cassidy FM

Hearing date:

25 July 2011

Date of Last Submission:

25 July 2011

Delivered at:

Brisbane

Delivered on:

26 July 2011

REPRESENTATION

Solicitors for the Applicant:

Richardson McGhie

Counsel for the Respondent:

Ms Wilson

Solicitors for the Respondent:

Not applicable

ORDERS

That the child [Z] born [in] 2004 be released from childcare into the care of the father.
Provided that the mother returns to live within 50km of her previous address in South East Queensland, the Orders of 26 March 2010 remain in force.
In the event that the mother does not return to live within 50km of her previous address in South East Queensland, the following Orders apply.
That the child [X] born [in] 1999 live with the mother.
That the children [Y] born [in] 2000 and [Z] born [in] 2004 live with the father.
That pursuant to s.65L of the Family Law Act 1975, the father and the child [X] shall attend up to three (3) appointments with Family Consultant Mr P, or such other Family Consultant as nominated by the Senior Family Consultant of the Federal Magistrates Court, Brisbane, for the purpose of reintroducing the child to the father.
That the appointments referred to in the preceding Order shall take place at such times as organised by the Family Consultant, at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.
That the parties shall attend appointments with the Family Consultant as directed. ‘
That the Family Consultant shall not be required to prepare any formal written report in the matter without further order.
That the Family Consultant shall have leave to inspect any subpoenaed documents.
That the mother shall facilitate the attendance of the child [X] upon the Family Consultant.
That the Family Consultant shall have liberty to list the matter for any further directions by approaching the associate of the Federal Magistrate making these orders and for that mention, the Family Consultant shall have leave to appear via the telephone.
That the mother file and serve any stay application and supporting affidavit material by no later than 4.00pm on Wednesday 27 July 2011.
That this matter be adjourned for hearing of the stay application at 9.30am on 28 July 2011 in the Federal Magistrates Court of Australia at Brisbane.
That this matter be adjourned for the 2012 trial callover at 9.30am on 6 December 2011 in the Federal Magistrates Court of Australia at Brisbane.
That the parties and their legal representatives personally attend Court on 6 December 2011.

NOTATION:

(A)It is requested that the s.65L appointments take place at times when the mother is attending in Queensland to visit the child [Z], if such…

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 Sampson and Walker

Details

AGLC: Sampson and Walker [2011] FMCAfam 819
Case: [2011] FMCAfam 819
Decision Date: 26 July 2011

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of Sampson and Walker involved a dispute between the parents, Sampson and Walker, over the care and custody of their children. The children were born in 1999, 2000, and 2004. The court had to decide on the best living arrangements for the children, taking into account the parents' ability to care for them and the children's welfare.

The legal issues that the court addressed included determining the most suitable living arrangements for the children and setting out the obligations and consequences of the orders. The court had to consider the parents' capacity to provide a stable and nurturing environment for the children and the potential impact of the living arrangements on the children's welfare.

The court ruled that the child born in 2004 should be released from childcare and placed in the care of the father, provided that the mother moves back to within 50km of her previous address in South East Queensland. If the mother does not move back, the child born in 1999 will live with the mother, while the children born in 2000 and 2004 will live with the father. The court also ordered that the father and the child born in 1999 attend up to three appointments with a Family Consultant to facilitate the reintroduction of the child to the father. The court emphasised the importance of the children's welfare and the need for the parents to cooperate in the children's upbringing.

Orders

Orders of the court

That the child [Z] born [in] 2004 be released from childcare into the care of the father.

Provided that the mother returns to live within 50km of her previous address in South East Queensland, the Orders of 26 March 2010 remain in force.

In the event that the mother does not return to live within 50km of her previous address in South East Queensland, the following Orders apply.

That the child [X] born [in] 1999 live with the mother.

That the children [Y] born [in] 2000 and [Z] born [in] 2004 live with the father.

That pursuant to s.65L of the Family Law Act 1975, the father and the child [X] shall attend up to three (3) appointments with Family Consultant Mr P, or such other Family Consultant as nominated by the Senior Family Consultant of the Federal Magistrates Court, Brisbane, for the purpose of reintroducing the child to the father.

That the appointments referred to in the preceding Order shall take place at such times as organised by the Family Consultant, at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.

That the parties shall attend appointments with the Family Consultant as directed. ‘

That the Family Consultant shall not be required to prepare any formal written report in the matter without further order.

10.

That the Family Consultant shall have leave to inspect any subpoenaed documents.

11.

That the mother shall facilitate the attendance of the child [X] upon the Family Consultant.

12.

That the Family Consultant shall have liberty to list the matter for any further directions by approaching the associate of the Federal Magistrate making these orders and for that mention, the Family Consultant shall have leave to appear via the telephone.

13.

That the mother file and serve any stay application and supporting affidavit material by no later than 4.00pm on Wednesday 27 July 2011.

14.

That this matter be adjourned for hearing of the stay application at 9.30am on 28 July 2011 in the Federal Magistrates Court of Australia at Brisbane.

15.

That this matter be adjourned for the 2012 trial callover at 9.30am on 6 December 2011 in the Federal Magistrates Court of Australia at Brisbane.

16.

That the parties and their legal representatives personally attend Court on 6 December 2011.

NOTATION:

(A) It is requested that the s.65L appointments take place at times when the mother is attending in Queensland to visit the child [Z], if such times coincide with the availability of the family consultant.

(B) It is the intention of the Court that this matter be listed for a priority trial in 2012.

(C) That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

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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