Sawyer & Sawyer - [2010] FMCAfam 329

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAWYER & SAWYER

[2010] FMCAfam 329

FAMILY LAW – Interim arrangements for care of children aged 10, 6 and 5 – father alleges mother has unilaterally relocated children’s place of residence from the outskirts of Adelaide to Western New South Wales – best interests – principles to be applied to relocation cases at interim stage.

Family Law Act 1975, s.61DA

Goode & Goode (2006) FLC 93-286
C & S [1998] FamCA 66
Morgan & Miles [2007] FamCA 1230

Applicant:

MR SAWYER

Respondent:

MS SAWYER

File Number:

ADC 427 of 2010

Judgment of:

Brown FM

Hearing date:

19 February 2010

Date of Last Submission:

19 February 2010

Delivered at:

Adelaide

Delivered on:

19 February 2010

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Boril Olds Solicitors

Counsel for the Respondent:

Mr McDonald

Solicitors for the Respondent:

Austen Brown Boog

ORDERS

This matter be listed for final hearing before Federal Magistrate Brown on 15 and 16 July 2010 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 17 June 2010.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 1 July 2010.
The applicant pay the hearing fee or file a remission certificate in respect thereof on or before close of Registry filing on 10 June 2010.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children 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 on or before 3 June 2010.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’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 children.
The mother return the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005 to [T] in the State of South Australia by midday 26 February 2010.
In the event that the mother elects to live within a radius of 20 kilometres of the [T] Police Station pending further determination of the parties’ completing applications, the children live with the mother and spend time with the father as follows:
(a)each weekend commencing 27 February 2010 from 9.00 am to 6.00 pm the following Sunday on the first weekend only and thereafter…

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: Sawyer & Sawyer [2010] FMCAfam 329
Case: [2010] FMCAfam 329
Decision Date: 19 February 2010

CaseChat Overview and Summary

The Federal Magistrates Court heard an application for a final parenting order concerning three children, [X], [Y], and [Z], born in 2000, 2003, and 2005 respectively. The applicant, the father, and the respondent, the mother, were in dispute over the children's residence and contact arrangements. The matter was listed for a final hearing over two days in July 2010.

The court had to decide on the best interests of the children, considering their views and factors affecting the weight of those views, as well as the provisions of sections 60CC, 61DA, and 65DAA of the Family Law Act 1975. The court was required to determine the children's residence, their schooling, contact arrangements, and the payment of a sum of money by the father to the mother to assist with accommodation.

The court ordered the mother to return the children to South Australia by midday on 26 February 2010, with specific arrangements for their time with the father. If the mother chose to live within a 20-kilometre radius of the [T] Police Station, the children would live with her and spend time with the father on weekends and after school on Fridays. If not, the children would live with the father and have contact with the mother as agreed upon by the parties. The court also ordered the father to provide the mother with $600 to assist with accommodation and directed the children to be exchanged at their school or an agreed location. Additionally, the court mandated that the mother and children attend a family report with a Regulation 7 practitioner, which was to be prepared and released before the final hearing.

Orders

Orders of the court

This matter be listed for final hearing before Federal Magistrate Brown on 15 and 16 July 2010 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.

The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 17 June 2010.

The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 1 July 2010.

The applicant pay the hearing fee or file a remission certificate in respect thereof on or before close of Registry filing on 10 June 2010.

Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children 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 on or before 3 June 2010.

The Family Report to deal with the following matters:

(a) any views expressed by the said children and any factors (such as the said children’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 children.

The mother return the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005 to [T] in the State of South Australia by midday 26 February 2010.

In the event that the mother elects to live within a radius of 20 kilometres of the [T] Police Station pending further determination of the parties’ completing applications, the children live with the mother and spend time with the father as follows:

(a) each weekend commencing 27 February 2010 from 9.00 am to 6.00 pm the following Sunday on the first weekend only and thereafter from the conclusion of school Friday until the commencement of school the following Monday.

The children be exchanged between the parties at their school or such other location as agreed between the parties and failing agreement at the [T] Police Station.

10.

In the event that the children live with the mother pursuant to order 8 hereof she re-enrol them at the [T] School.

11.

In the event that the mother elects not to live within a radius of 20 kilometres of the [T] Police Station pending further determination of the parties’ completing applications the children live with the father and spend time with the mother at such times and such conditions as agreed between the parties.

12.

In the event that the mother fails to comply with order 7 hereof a recovery order will issue.

13.

The father provide the mother with the sum of six hundred dollars ($600.00) to assist her with accommodation in the event that she elects to live in the [T] area pending final hearing of this matter.

14.

Pending the mother’s return to South Australia pursuant to order 7 hereof the father have telephone contact with the children each evening at 5.30 pm (NSW time) with the father to telephone the mother’s mobile telephone.

15.

Further consideration of the matter is adjourned to 11 March 2010 at 9.30 am.

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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