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…
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- Samworth & Grady & Anor [2010] FMCAfam 750
- Case
- [2010] FMCAfam 750
- Decision Date
CaseChat Overview and Summary
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
1.
That the child [X] born [in] 2006 (“the child”) live with the maternal grandmother.
2.
That the maternal grandmother have sole parental responsibility for the said child, subject to paragraph 3 below.
3.
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.
4.
The said child be permitted to relocate her primary residence to New Zealand.
5.
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.
6.
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.
7.
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.
8.
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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