Segur and Gaddis - [2011] FMCAfam 461

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SEGUR & GADDIS

[2011] FMCAfam 461

FAMILY LAW – Children – parenting orders – relocation – best interests of the child – parental responsibility – equal shared parental responsibility – equal shared time – substantial and significant time – allegations of family violence.

Family Law Act 1975 (Cth), ss.4, 60C, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424
AMS v AIF; AIF v AMS (1999) 199 CLR 160; 24 Fam LR 756; FLC 92-852
M & K [2007] FMCAfam 26
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035
U v U (2002) 211 CLR 238; 29 Fam LR 74; FLC 93-112

Applicant:

MR SEGUR

Respondent:

MS GADDIS

File Number:

SYC 3275 of 2009

Judgment of:

Scarlett FM

Hearing date:

4 & 5 February 2011, 8 April 2010

Date of Last Submission:

8 April 2010

Delivered at:

Sydney

Delivered on:

2 March 2011

REPRESENTATION

Solicitors for the Applicant:

Carlisle Attorneys

Counsel for the Respondent:

Mr Wong

Solicitors for the Respondent:

Watts McCray

ORDERS

All previous parenting orders are discharged.
The parties are to have equal shared parental responsibility for the child [X] born [in] 2005.
IN THE EVENT THAT the respondent mother lives in Sydney:
(a)The applicant father is to have responsibility for making decisions about the day to day care, welfare and development of the child [X] during those times when the child is living with the father;
(b)The mother is to have responsibility for making decisions about the day to day care, welfare and development of the child [X] during those times when the child is living with the mother;
(c)The parties are to share the care of the child as follows:
(i)The child is to live with the father for the first week of each school term from 5.00 pm on the Sunday immediately before the commencement of the school term until 5.00 pm on the following Sunday and each alternate week thereafter;
(ii)The child is to live with the mother for the second week of each school term from 5.00 pm on the Sunday following the commencement of the school term until 5.00 pm on the following Sunday and each alternate week thereafter;
(iii)The child is to live with the father from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in 2011 and from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2012 and each alternate year thereafter;
(iv)The child is to live with the mother from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2011 and from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in 2012 and each alternate year thereafter;
(v)
The child is to live with the father for the first week of the Autumn, Winter and Spring school holiday…

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 Segur and Gaddis

Details

AGLC: Segur and Gaddis [2011] FMCAfam 461
Case: [2011] FMCAfam 461
Decision Date: 2 March 2011

CaseChat Overview and Summary

The case of Segur and Gaddis involves a dispute between the parents of a child born in 2005. The primary issue before the court was to determine the parenting arrangements for the child, considering the mother's relocation to Sydney and the father's continued residence in Melbourne. The court had to decide on the allocation of parental responsibilities, the schedule for the child's residence and time spent with each parent, and the mechanisms for communication and information sharing between the parents.

The court addressed several legal issues, including the best interests of the child as the paramount consideration, the need for stability and continuity in the child's life, and the importance of both parents maintaining a meaningful relationship with the child. The court also considered the implications of the mother's relocation on the child's living arrangements and the practicalities of maintaining a relationship between the child and each parent.

The court ruled that all previous parenting orders were discharged and established new orders for shared parental responsibility, with detailed arrangements for the child's residence and time spent with each parent. The arrangements varied depending on whether the mother remained in Sydney or returned to Melbourne. In the case of the mother residing in Sydney, the court set out a specific schedule for the child's residence with each parent, including detailed timelines for school terms, holiday periods, and special occasions. The court also mandated communication between the child and the non-resident parent, and required both parents to share information about the child's health and education. In the event that the mother returned to Melbourne, the court ordered that the child would live primarily with the father, with specific periods for the child to spend time with the mother in Melbourne and Sydney, along with provisions for travel costs and communication.

The court's final orders reflect a balanced approach, aiming to ensure the child's ongoing relationship with both parents while accommodating the mother's relocation and the father's residence in Melbourne. The detailed parenting schedule and communication requirements underscore the court's emphasis on maintaining stability and continuity in the child's life.

Orders

Orders of the court

All previous parenting orders are discharged.

The parties are to have equal shared parental responsibility for the child [X] born [in] 2005.

IN THE EVENT THAT the respondent mother lives in Sydney:

(a) The applicant father is to have responsibility for making decisions about the day to day care, welfare and development of the child [X] during those times when the child is living with the father;

(b) The mother is to have responsibility for making decisions about the day to day care, welfare and development of the child [X] during those times when the child is living with the mother;

(i) The child is to live with the father for the first week of each school term from 5.00 pm on the Sunday immediately before the commencement of the school term until 5.00 pm on the following Sunday and each alternate week thereafter;

(ii) The child is to live with the mother for the second week of each school term from 5.00 pm on the Sunday following the commencement of the school term until 5.00 pm on the following Sunday and each alternate week thereafter;

(iii) The child is to live with the father from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in 2011 and from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2012 and each alternate year thereafter;

(iv) The child is to live with the mother from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2011 and from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in 2012 and each alternate year thereafter;

(v)

The child is to live with the father for the first week of the Autumn, Winter and Spring school holiday period from

5.00 pm on the last day of the school term until 5.00 pm on the following Friday

(vi) The child is to live with the mother from 5.00 pm of the first Friday of the Autumn, Winter and Spring school holiday period until 5.00 pm on the following Friday;

(vii) For the Christmas/January school holiday period in each year the child is to live with the father from 5.00 pm on the last Friday of the school term until 5.00 pm on 2 January except as provided by Order (3)(c)(iii);

(viii) For the Christmas/January school holiday school holiday period in each year the child is to live with the mother from 5.00 pm on 2 January until 5.00 pm on Australia Day;

(ix) For the child’s birthday being [date omitted] in each year the child will live with the mother from 9.00 am to 2.00 pm and with the father from 2.00 pm until 7.00 pm;

(x) The child is to live with the father on Father’s Day in each year and with the mother on Mother’s Day in each year;

(xi) The child is to communicate by telephone with the parent with whom he is not living at that time on one occasion each day between the hours of 4.00 pm and 8.00 pm and each party must do all things necessary to facilitate that telephone communication;

(xii) Otherwise as the parties agree.

(d) Each party must inform the other party as soon as practicable of any serious illness or injury suffered by the child requiring medical treatment or admission to hospital.

IN THE EVENT THAT the mother remains living in Melbourne the following Orders shall take effect:

(a) The child [X] born [in] 2005 is to live with the father;

(b) The child is to spend time with the mother in Melbourne as follows:

(i) For the entire New South Wales Autumn, Winter and Spring school holiday periods in each year;

(ii) For a period of four (4) weeks during the New South Wales Christmas/January school holiday period as agreed between the parties;

(iii) For the New South Wales Queen’s Birthday and Labour Day public holiday weekends as agreed between the parties and taking into account the availability of airline flights; and

(iv) For the weekend on which Mother’s Day falls in each year as agreed between the parties and taking into account the availability of airline flights.

(c) For the purposes of the child spending time with the mother in Melbourne the father is to be responsible for the payment of the necessary costs for himself and the child to travel from Sydney to Melbourne and the mother is to be responsible for the payment of the necessary costs for herself and the child to travel from Melbourne to Sydney, or as other wise agreed between the parties.

(d) The child is to spend time with the mother in Sydney as follows:

(i) For four (4) weekends in each year in addition to those weekends referred to in Orders (4)(b)(iii) and (iv) where the mother is to travel to Sydney and the father is to pay one half of the mother’s reasonable expenses including airfares and for this purpose the mother must advise the father of her proposed travel dates, flights and fares one (1) month prior to travel;

(ii) At other reasonable times as agreed between the parties.

(e) The child is to share Christmas and Orthodox Easter celebrations with each parent as agreed between them;

(f) For the purposes of changeover the father or a responsible adult member of the father’s family must deliver the child to Melbourne Airport at the commencement of the time that he is to spend with the mother and the mother or a responsible adult member of her family is to return the child to Sydney Airport at the conclusion of that time.

(g) The father must do all things necessary to ensure that the child has regular telephone and email communication with the mother including three telephone calls each week.

The father must authorise the principal of the school attended by the child to provide to the mother at her expense copies of all school reports, newsletters, information about school photographs and all other communications regularly sent to parents of children attending that school.

The mother may communicate directly with the child’s school to obtain all necessary information about the child and a copy of this Order shall be the authority for the school to provide such information.

Each party must inform the other party as soon as practicable of any serious illness or injury suffered by the child requiring medical treatment or admission to hospital.

Each of the parties must inform the other of the name and address of any medical practitioner, dental surgeon or other health professional who has treated the child and authorise such persons to provide all necessary information about the child’s treatment and condition.

The parties must advise each other of any change to their residential address, landline telephone number or mobile telephone number within forty-eight (48) hours.

10.

The parties must do all things necessary to continue the child’s enrolment and attendance at [S] School at [G] unless they agree that he should attend another school.

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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