Serle and Serle - [2008] FMCAfam 253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SERLE & SERLE

[2008] FMCAfam 253

FAMILY LAW – Parenting – relocation – [L] to [C] – four to five hours drive – father’s family influential in [L] area – mother somewhat intimidated – father controlling – father working up to 75 hours per week – whether father could relocate too – mother primary carer.

Family Law Act 1975 ss.60B, 60ca, 60cc(1), 60cc(2), 60cc(3), 60cc(4), 60cc(4A), 61da, 65daa

A & A: Relocation Approach (2000) 26 Fam LR 382, (2000) FLC 93-035; [2000] FamCA 751
AMS v AIF (1999) 199 CLR 160; FLC 92-852
KB & TC (2005) 33 Fam LR 471, (2005) FLC 93-224; [2005] FamCA 458
Sampson v Hartnett [2007] FamCA 1365
Taylor and Barker (2007) 37 Fam LR 461, [2007] FamCA 1246
U v U [2002] HCA 36 (2002) 211 CLR 238

Applicant:

MR SERLE

Respondent:

MS SERLE

File Number:

DGC 152 of 2008

Judgment of:

Riley FM

Hearing dates:

18 & 19 March 2008

Date of Last Submission:

19 March 2008

Delivered at:

Melbourne

Delivered on:

17 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr Curtain

Solicitors for the Applicant:

McCormack & Co Solicitors

Counsel for the Respondent:

Ms Baczynski

Solicitors for the Respondent:

Reale Lawyers

ORDERS

The mother and father have equal shared parental responsibility for S born in 2002 (“S”) and B born in 2005 (“B”).
S and B live with their mother.
After 4 July 2008, the mother be restrained from living more than

60 kilometres from [L] in the State of Victoria.
After 4 July 2008, S and B spend time with their father:
(a)from after school on each alternate Thursday to 5.00 pm the following Sunday, or the following Monday if it is not a school day;
(b)in the alternate week, from after school Thursday to before school Friday;
(c)for the first half of the school term holidays;
(d)for the first half of the summer holidays, except for the period from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day, in 2008 and each alternate year thereafter;
(e)for the second half of the summer holidays, as well as the period from 5.00 pm on Christmas Eve to 5.00 pm on Christmas Day, in 2009 and each alternate year thereafter; and
(f)for two hours on each of the children’s and the father’s birthdays at times to be agreed.
If Father’s Day falls on a weekend that S and B would not spend with their father, then S and B are to spend that weekend with their father instead of the following weekend.
If Mother’s Day falls on a weekend that S and B would spend with their father, then S and B are to spend that weekend with their mother instead of the following weekend.
If either of S and B’s birthdays fall on a day that S and B are spending with their father, S and B are to spend two hours with their mother on that day at times to be agreed.

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 Serle and Serle

Details

AGLC: Serle and Serle [2008] FMCAfam 253
Case: [2008] FMCAfam 253
Decision Date: 17 April 2008

CaseChat Overview and Summary

The case of Serle and Serle involved a dispute between the parents of two children, S and B, born in 2002 and 2005 respectively. The primary issue was the determination of parental responsibilities and time-sharing arrangements between the mother and father. The case was heard in the Family Court of Australia.

The legal issues that the court had to decide included the allocation of parental responsibilities, the specific time-sharing arrangements for the children, the residence of the children, and the conditions under which the children could communicate with their father. The court also had to determine the geographical constraints on the mother's residence and the communication methods between the parties.

The court found that both parents should have equal shared parental responsibility for the children. The children were to reside with their mother but were to spend considerable time with their father, with detailed arrangements set out in the order. The mother was restrained from living more than 60 kilometres from a specified location in Victoria. The children's time with their father was meticulously scheduled, including specific arrangements for school term holidays, special occasions, and weekends. Communication between the children and their father was also regulated, including the use of a communication book and specific telephone contact times. The father was restrained from discussing reconciliation with the mother without her consent. The court also allowed the mother to choose a primary school for the children within specified geographical limits.

The court's orders included detailed provisions for the children's residence, time-sharing, communication, and parental responsibilities, with specific provisions for the geographical constraints on the mother's residence and the communication methods between the parties. The parties were allowed to vary the terms of the orders by mutual agreement.

Orders

Orders of the court

The mother and father have equal shared parental responsibility for S born in 2002 (“S”) and B born in 2005 (“B”).

S and B live with their mother.

After 4 July 2008, the mother be restrained from living more than

60 kilometres from [L] in the State of Victoria.

After 4 July 2008, S and B spend time with their father:

(a) from after school on each alternate Thursday to 5.00 pm the following Sunday, or the following Monday if it is not a school day;

(b) in the alternate week, from after school Thursday to before school Friday;

(d) for the first half of the summer holidays, except for the period from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day, in 2008 and each alternate year thereafter;

(e) for the second half of the summer holidays, as well as the period from 5.00 pm on Christmas Eve to 5.00 pm on Christmas Day, in 2009 and each alternate year thereafter; and

(f) for two hours on each of the children’s and the father’s birthdays at times to be agreed.

If Father’s Day falls on a weekend that S and B would not spend with their father, then S and B are to spend that weekend with their father instead of the following weekend.

If Mother’s Day falls on a weekend that S and B would spend with their father, then S and B are to spend that weekend with their mother instead of the following weekend.

If either of S and B’s birthdays fall on a day that S and B are spending with their father, S and B are to spend two hours with their mother on that day at times to be agreed.

Changeover is to be effected at S’s school on school days and at the shopping centre closest to the mother’s home on other days.

The mother is to notify the father in writing of the address of the shopping centre on or before 3 July 2008.

10.

S and B are to communicate with their father by telephone at 7.00 pm each Tuesday and otherwise when they wish.

11.

The mother is to buy and make available for the use of both parties a communication book for the purpose of communicating any information about S and B’s needs or activities.

12.

The father is restrained from:

(a) discussing reconciliation with the mother, unless the mother expressly authorises the father to discuss reconciliation with her;

(b) in any way pressuring the mother to reconcile with him; and

(c) expressly or impliedly requesting anyone else to pressure the mother to reconcile with the father or discuss with the mother reconciliation with the father.

13.

Notwithstanding order 1 hereof, the mother is at liberty to choose a primary school, within 60 kilometres of [L], and 10 kilometres of her home, for S and B to attend.

14.

S and B may remain living in [C] until the school holidays commencing on 27 June 2008, when S and B are to spend the first week of the school holidays with their father.

15.

Until 27 June 2008, S and B are to spend two out of three weekends with their father from 6.00 pm Friday until 5.00 pm Sunday, to be adjusted to ensure that S attends pony club while in the father’s care, and with changeover to be effected at [X] on the northbound side.

16.

The parties may vary the terms of any of these orders by agreement.

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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