SHIELDS & VISSER - [2010] FMCAfam 28

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHIELDS & VISSER

[2010] FMCAfam 28

FAMILY LAW – Parenting – child nearly eight – was born in the Netherlands and spent her formative years there until the mother decided to travel with the child to Australia in 2008 – the father seeks to restrain the mother relocating the child’s residence back to the Netherlands – considerations of the impact of the parent’s conflict on the child’s emotional wellbeing – the child’s relationships with each of her parents – the emotional state of the mother – the mother’s willingness to facilitate the child’s relationship with her father.

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

A & A: Relocation Approach (2000) 26 Fam LR 382
Bolitho v Cohen [2005] FamCA 458
Goode & Goode [2006] FamCA 1346

McCall & Clark [2009] FamCAFC 92

Taylor & Barker (2007) 37 Fam LR 461
Treloar & Nepean [2009] FamCAFC 206
U & U (2002) 29 Fam LR 74

Applicant:

MR SHIELDS

Respondent:

MS VISSER

File Number:

SYC 1405 of 2009

Judgment of:

Walker FM

Hearing dates:

1 & 2 October 2009

Date of Last Submission:

2 October 2009

Delivered at:

Sydney

Delivered on:

12 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr Wong

Solicitors for the Applicant:

Legal Aid New South Wales ([B])

Counsel for the Respondent:

Mr Dura

Solicitors for the Respondent:

Levy Partners

THE COURT ORDERS THAT:

The child [X] born [in] 2001 is to live with her mother and her mother is permitted to remove [X] from the Commonwealth of Australia to reside with her in the Netherlands.
The name of the child [X] born [in] 2001 is to be removed from the Airport Watchlist forthwith.
The parents are to have equal shared parental responsibility for the child.
Unless otherwise agreed, the mother is to make [X] available to spend time with her father as follows:
(a)In Australia, during the Netherlands July/August school holiday period, each year from the Monday following the conclusion of school to the Wednesday prior to the resumption of school.
And provided that the father gives the mother 28 days notice of his arrival and departure dates:
(b)In the Netherlands for the whole of two of the other school holiday periods.
(c)Should the father extend his stay in the Netherlands beyond the school holiday periods referred to in Order 4(b), upon [X]’s return to school he is to spend time with her each weekend from Friday after school to before school on Monday and up to two other occasions each week from after school to before school on the following day for a period of up to six weeks on any one occasion.
(d)The father is to spend such further time with [X] as may be agreed between he and the mother.
(a)The mother is to ensure that [X] communicates with the father via electronic means, including email, webcam and Skype each Tuesday and Thursday between 7.00am and 7.30am local time and at any other reasonable times upon which the…

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 SHIELDS & VISSER

Details

AGLC: SHIELDS & VISSER [2010] FMCAfam 28
Case: [2010] FMCAfam 28
Decision Date: 12 February 2010

CaseChat Overview and Summary

The case of SHIELDS & VISSER involved a dispute between parents regarding the residence, contact arrangements, and general welfare of their daughter, [X], born in 2001. The Family Court of Australia was tasked with determining the living arrangements and visitation rights of the parents, as well as other related issues.

The legal issues addressed by the court encompassed the primary residence of the child, the removal of the child's name from the Airport Watchlist, the allocation of parental responsibility, and the specifics of visitation schedules. Additionally, the court considered communication requirements between the parents and the child, the provision of medical information, and the logistics of travel arrangements between Australia and the Netherlands.

The court ruled that [X] would reside with her mother in the Netherlands but would visit her father in Australia during specified periods. The court mandated that both parents share equal responsibility for [X] and outlined detailed visitation schedules, communication protocols, and the necessity for both parents to facilitate educational and medical information exchange. The court also directed that the mother would bear the costs of [X]'s travel to Australia, while the father would cover his travel expenses. The court's decisions were aimed at ensuring the child's best interests were met, balancing the needs of both parents.

The court's orders included the removal of [X]'s name from the Airport Watchlist, the establishment of specific visitation times between [X] and her father, and the requirement for both parents to maintain updated contact information and ensure regular communication between themselves and [X]. The orders also covered the logistics of travel and the provision of educational and medical information between the parents.

Orders

Orders of the court

The child [X] born [in] 2001 is to live with her mother and her mother is permitted to remove [X] from the Commonwealth of Australia to reside with her in the Netherlands.

The name of the child [X] born [in] 2001 is to be removed from the Airport Watchlist forthwith.

The parents are to have equal shared parental responsibility for the child.

Unless otherwise agreed, the mother is to make [X] available to spend time with her father as follows:

(a) In Australia, during the Netherlands July/August school holiday period, each year from the Monday following the conclusion of school to the Wednesday prior to the resumption of school.

And provided that the father gives the mother 28 days notice of his arrival and departure dates:

(b) In the Netherlands for the whole of two of the other school holiday periods.

(c) Should the father extend his stay in the Netherlands beyond the school holiday periods referred to in Order 4(b), upon [X]’s return to school he is to spend time with her each weekend from Friday after school to before school on Monday and up to two other occasions each week from after school to before school on the following day for a period of up to six weeks on any one occasion.

(d) The father is to spend such further time with [X] as may be agreed between he and the mother.

(a) The mother is to ensure that [X] communicates with the father via electronic means, including email, webcam and Skype each Tuesday and Thursday between 7.00am and 7.30am local time and at any other reasonable times upon which the parents may agree.

(b) Unless otherwise agreed, the mother is to ensure that [X] telephones her father each Saturday between 7.00am and 7.30am local time.

For the purpose of [X] spending time with her father pursuant to Order 4(a) above, the mother is to cause [X] to be delivered to her father at Sydney International Airport at the commencement of the father’s time with [X] and the father is to return [X] to the mother at Sydney International airport at the conclusion of his time with her, unless otherwise agreed between the parents in writing.

The mother is to ensure that the father is provided with all such authorities necessary to enable him to communicate with the school attended by [X] and to receive all information or documents which are available to parents of the school attended by [X].

Should the mother not enrol [X] at the school previously attended by her in the Netherlands, the mother is to provide details of alternative schools to the father prior to any enrolment of [X] in another school.

The mother is to provide the father with the names of medical practitioners consulted by [X] and with such authorities as may be required to enable the father to obtain information about [X]’s wellbeing from such medical practitioners.

10.

The mother is to contact the father by email prior to [X] receiving treatment for any significant medical condition except in the case where emergency treatment is required.

11.

At all times each of the parties is to ensure that the other has a telephone contact number available so that each party may speak with [X] while she is in the care of the other party and each party is to keep the other informed of the current residential address and email address of each.

12.

All outstanding applications be otherwise dismissed.

Arrangements for travel including costs

13.

The mother is to make all arrangements for [X] to travel to Australia in accordance with Order 4(a) and is to meet the cost of [X]’s return airfares and that of any accompanying person.

14.

The mother is to advise the father of [X]’s itinerary for the travel pursuant to order 4(a) no later than 21 days prior to [X]’s arrival.

15.

The father is to be responsible for his own costs of travel in accordance with Order 4(b) and Order 4(c) above.

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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