Samworth & Grady & Anor - [2010] FMCAfam 750

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAMWORTH & GRADY & ANOR

[2010] FMCAfam 750

FAMILY LAW – Final parenting orders – relocation – mother withdrew from proceedings – child living with second respondent maternal grandmother – application to relocate to New Zealand – child to live with second respondent in New Zealand – child to spend time with applicant.

Family Law Act 1975 (Cth), s.60CC

Goode & Goode [2006] FamCA 1346
Lansa & Clovelly [2010] FamCA 80
Chappell & Chappell (2008) FLC 93-349
Pitkin & Hendry [2008] FamCA 186
Taylor & Barker [2007] FamCA 1246
Starr & Duggan [2009] FamCA FC 115
Hall & Hall [1979] FLC 90-713
Mazorski & Albright (2008) 37 FamLR 518
Collu v Rinaldo [2010] FamCA FC 53
Fitzroy & Fitzroy [2009] FamCA 954
McCall & Clark (2009) FamCA 92
Marvel & Marvel (No.2) [2010] FamCA 101
Saunders & Saunders (1976) FLC 90-078
Aldridge & Keaton [2009] FamCA 229
Potts & Bims [2007] FamCA 394
Donnell v Dovey [2010] FamCA FC 15
Carlson and Ors & Bowden [2008] FamCA 1064

Applicant:

MR SAMWORTH

First Respondent:

MS J GRADY

Second Respondent:

MS O GRADY

File Number:

DGC 3382 of 2007

Judgment of:

O’Sullivan FM

Hearing dates:

7, 8 & 9 June 2010

Date of Last Submission:

9 June 2010

Delivered at:

Melbourne

Delivered on:

3 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr I. Brewer

Solicitors for the Applicant:

Victoria Legal Aid

The First Respondent:

No appearance

Counsel for the Second Respondent:

Ms B. Phelan

Solicitors for the Second Respondent:

Robert Halliday & Associates

Counsel for the Independent Children’s Lawyer:

Mr N. Eidelson

Solicitors for the Independent Children’s Lawyer:

Westminster Lawyers

ORDERS

That the child [X] born [in] 2006 (“the child”) live with the maternal grandmother.
That the maternal grandmother have sole parental responsibility for the said child, subject to paragraph 3 below.
That the maternal grandmother provide to the father without undue delay information in relation to:
(a)the child’s health and medical needs as they may arise;
(b)photographs of the child no less than once per month; and
(c)copies of any printed information concerning the child’s social and academic progress, produced by any kindergarten or school the child may attend, and which is normally made available to parents.
The said child be permitted to relocate her primary residence to New Zealand.
That the maternal grandmother keep the father appraised at all times of her current:
(a)contact telephone number;
(b)email address;
(c)residential address; and
(d)the details of any kindergarten or school the child may attend.
The father spend time with and communicate with the said child as follows:
(a)by telephone once per week on a day and time to be agreed, and the grandmother ensure that the said child is available to received the call and facilitate same, at the cost of the father;
(b)by Skype, and the grandmother use her best endeavours to arrange such facility in her home for the child to use without undue delay;
(c)upon the provision of one month’s notice, the father may…

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: Samworth & Grady & Anor [2010] FMCAfam 750
Case: [2010] FMCAfam 750
Decision Date: 3 August 2010

CaseChat Overview and Summary

In the matter of Samworth & Grady & Anor, the court was tasked with determining various parenting orders concerning the primary residence and visitation rights of the child, [X], born in 2006. The primary dispute involved the relocation of the child to New Zealand with the second respondent, the child's maternal grandmother, while also allowing the father to maintain a meaningful relationship with the child. The mother had withdrawn from the proceedings, and the child had been residing with the maternal grandmother. The father sought to relocate the child to New Zealand with the grandmother and to establish a visitation schedule.

The legal issues before the court included whether it was in the child's best interest to relocate to New Zealand, and if so, what arrangements should be made to facilitate the father's ongoing relationship with the child. The court had to weigh the benefits of the relocation against the potential disruption to the child's life and the importance of maintaining a connection with both parents. Additionally, the court needed to determine the extent of the maternal grandmother's parental responsibility and the specific details of the father's visitation rights.

The court found that relocating the child to New Zealand with the maternal grandmother was in the child's best interest, given the grandmother's stable and supportive environment. The court ordered that the child live with the maternal grandmother, who would have sole parental responsibility, subject to certain conditions. The court also established a detailed visitation schedule for the father, including regular telephone and Skype contact, in-person visits, and specific arrangements for the child's travel to and from Australia. The court emphasised the importance of the maternal grandmother keeping the father informed about the child's health, education, and contact details. Finally, the court directed the Australian Federal Police to remove the child's name from the Airport Watch List to facilitate the relocation and visitation arrangements.

Orders

Orders of the court

That the child [X] born [in] 2006 (“the child”) live with the maternal grandmother.

That the maternal grandmother have sole parental responsibility for the said child, subject to paragraph 3 below.

That the maternal grandmother provide to the father without undue delay information in relation to:

(a) the child’s health and medical needs as they may arise;

(b) photographs of the child no less than once per month; and

(c) copies of any printed information concerning the child’s social and academic progress, produced by any kindergarten or school the child may attend, and which is normally made available to parents.

The said child be permitted to relocate her primary residence to New Zealand.

That the maternal grandmother keep the father appraised at all times of her current:

(a) contact telephone number;

(b) email address;

(d) the details of any kindergarten or school the child may attend.

The father spend time with and communicate with the said child as follows:

(a) by telephone once per week on a day and time to be agreed, and the grandmother ensure that the said child is available to received the call and facilitate same, at the cost of the father;

(b) by Skype, and the grandmother use her best endeavours to arrange such facility in her home for the child to use without undue delay;

(c) upon the provision of one month’s notice, the father may spend time with the said child in New Zealand for a period up to 5 days, away from the home of the maternal grandmother but in the vicinity of same;

(ci) during any period of contact referred to in sub paragraph 6(c) above, the child shall communicate with the maternal grandmother once per day by telephone and the father shall facilitate same;

(d) on 3 occasions in each year the father may upon the provision of two month’s notice to the maternal grandmother, require that she travel with the said child from New Zealand to Melbourne and to facilitate same, he shall provide a return airfare prepaid for the maternal grandmother and the child, such contact to be for a period of one week in the absence of the maternal grandmother; and

(e) upon the said child turning 4 years of age, subparagraph 6(d) may operate on the basis of the child returning to Australia accompanied by an airline officer in the absence of the maternal grandmother.

The Australian Federal Police do remove the name of the child [X] born [in] 2006 from the Airport Watch List currently in force at all points of arrival and departure in the Commonwealth of Australia.

Pursuant to rule 21.15 of the

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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