Sampson & Hartnett (No 10)

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FAMILY COURT OF AUSTRALIA

SAMPSON & HARTNETT (NO. 10) [2007] FamCA 1365

FAMILY LAW – CHILDREN - PARENTING – Power of Court to direct, or by effect, order a parent to relocate – s 114(3) Family Law Act 1975 - the effect of s 92 of the Constitution on parenting orders actually or effectively requiring or preventing interstate relocation – the propriety of orders with coercive impact

FAMILY LAW – CHILDREN - PARENTING ORDERS - Failure by the trial Judge to consider the reasonable practicability of a party being required to relocate to and live in Sydney – ss 65DAA(1), (2) & (5)
Family Law Act 1975 (Cth) ss 60B, 64B, 65D, 65DAA, 68B, 114; Division 12A
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
The Constitution s 92

B and B: Family Law Reform Act 1995 (1997) FLC 92-755
AMS v AIF; AIF v AMS (1999) FLC 92-852
H v E (1999) FLC 92-845
A and A (Relocation Approach) (2000) FLC 93-035
U and U (2002) FLC 93-112
D and SV (2003) FLC 93-139

In re the Marriage of Fingert 221 3d 1575 (Cal App, 1990)
In re Marriage of Littlefield 940 P 2d 1362 (Wash, 1997)
In re the Matter of the Custody ofDMG and TJG, Minor Children 951 P 2d 1377 (Mont, 1998)

APPELLANT MOTHER: SAMPSON
RESPONDENT FATHER: HARTNETT
FILE NUMBER: SYF 3827 of 2004
APPEAL NUMBER: EA 54 of 2007
DATE DELIVERED: 22 November 2007
PLACE DELIVERED: Melbourne
PLACE HEARD: Sydney
JUDGMENT OF: BRYANT CJ, KAY and WARNICK JJ
HEARING DATE: 23 August 2007
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 14 February 2007 & 21 March 2007
LOWER COURT MNC: [2007] FamCA 202 & [2007] FamCA 241

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Murphy SC with Mr Lloyd
SOLICITOR FOR THE APPELLANT: Paul & Paul Lawyers
COUNSEL FOR THE RESPONDENT: Mr Richardson SC with Mr Kearney
SOLICITOR FOR THE RESPONDENT: Karras Partners
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gould
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

  1. That the appeal be allowed.

  2. That orders 15 to 18 inclusive of the orders of Moore J made 21 March 2007 be set aside.

  3. That the application for parenting orders be remitted to Moore J for hearing and determination in accordance with the reasons of this Court.

  4. That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.

  5. That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the…

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Details
Case
[2007] FamCA 1365
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Bryant CJ, Kay and Warnick JJ, heard an appeal concerning parenting orders made by Moore J. The dispute involved the mother's application for parenting orders, which the trial judge had granted, effectively requiring her to relocate to Sydney. The father appealed these orders.

The central legal issues before the Full Court were whether the trial judge had erred in making parenting orders that effectively required or prevented interstate relocation, and whether the judge had failed to consider the reasonable practicability of the mother being required to relocate to and live in Sydney, as mandated by ss 65DAA(1), (2) and (5) of the *Family Law Act 1975*. The Court also considered the implications of s 114(3) of the *Family Law Act* and s 92 of the *Constitution* on parenting orders with a coercive impact on relocation.

The Full Court allowed the appeal, finding that the trial judge had failed to adequately consider the reasonable practicability of the mother's relocation. The Court reasoned that while the *Family Law Act* permits orders that may have the effect of requiring relocation, such orders must be demonstrably practicable for the parent. The Court set aside the specific orders made by the trial judge concerning the parenting arrangements and remitted the application for parenting orders back to the trial judge for redetermination. The Court also issued costs certificates to the mother, father, and the Independent Children's Lawyer, and ordered the mother to pay a sum towards the father's costs in relation to the property aspect of the appeal.

Orders

Orders of the court

1.

That the appeal be allowed.

2.

That orders 15 to 18 inclusive of the orders of Moore J made 21 March 2007 be set aside.

3.

That the application for parenting orders be remitted to Moore J for hearing and determination in accordance with the reasons of this Court.

4.

That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.

5.

That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.

6.

That the Court grants to the Independent Children’s Lawyer a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

7.

That the appellant mother pay the respondent father the sum of $7,500 towards the respondent father’s costs in relation to the property aspect of the appeal, such sum to be deducted from her share of the sale proceeds of the former matrimonial home.

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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