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Sinclair & Sinclair

Sinclair & Sinclair

Case [2022] FedCFamC2F 1376 10 November 2022

Parenting Orders

Best Interests of the Child

Meaningful Relationship

Relocation

Shared Parental Responsibility

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Sinclair & Sinclair [2022] FedCFamC2F 1376

File number(s): ADC 3981 of 2017

Judgment of: JUDGE JENKINS

Date of judgment: 10 November 2022

Catchwords: FAMILY LAW – Parenting – unilateral relocation – where both parents capable and loving – reasonable practicability – meaningful relationship with the father

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 62B, 65D, 65DA, 65DAA, 121

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and r 10.14(b)

Cases cited:
A & A: Relocation Approach [2000] FamCA 751

AMS v AIF [1999] HCA 26 (“AMS”)

Godfrey & Sanders [2007] FamCA 102

Grella & Jamieson [2017] FamCAFC 21

Heath & Hemming (No 2) [2011] FamCA 749

Koyroushs & Koyroyshs [2021] FedCFamC1A 54

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Morgan & Miles [2007] FamCA 1230

MRR v GR [2010] HCA 4

Starr & Duggan [2009] FamCAFC 115

Taylor & Barker [2007] FamCA 1246

U v U [2002] HCA 36 (“U v U”)

Division: Division 2 Family Law

Number of paragraphs: 146

Date of last submission/s: 2 September 2022

Date of hearing: 29, 30, 31 August 2022 and 2 September 2022

Place: Adelaide

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms Read

Solicitor for the Respondent: SJ McKinnon and Associates

Counsel for the Independent Children's Lawyer: Ms Lee

Solicitor for the Independent Children's Lawyer: Georgina Parker Lawyers
ORDERS

ADC 3981 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SINCLAIR
Applicant

AND:
MS SINCLAIR
Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE JENKINS

DATE OF ORDER:

10 November 2022

THE COURT ORDERS:
1.That the final parenting orders made 27 February 2019 be discharged.
2.The parties have equal shared parental responsibility for the child X born in 2015 (“X”).
3.Until the commencement of first term 2023:
(a)X live with the mother on Region B;
(b)X spend time with the father in Adelaide during term 4, 2022, on each alternate weekend from Saturday between 10.30 am and 11.00 am until Sunday at 3.00 pm or Monday at 3.00 pm if Monday is a public holiday;
(c)Handover to occur at the C Street Bus terminal in Adelaide with the mother to deliver X to and from the terminal.

4.From the commencement of first term in 2023:
In the event the mother remains residing on Region B:
(a)X live with the father in Adelaide;
(b)X spend time and communicate with the mother:
(i)Each alternate weekend from after school Friday until Sunday afternoon or Monday afternoon, if Monday is a public holiday, with handover times as agreed (except for the Father’s Day weekend when her time shall be suspended);
(ii)On the Mother’s Day weekend, if her time does not fall on that weekend, from after school Friday until Sunday afternoon, with handover times as agreed;
(iii)In the term 1 and term 3 school holidays,…

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 Sinclair & Sinclair

Details

AGLC: Sinclair & Sinclair [2022] FedCFamC2F 1376
Case: [2022] FedCFamC2F 1376
Decision Date

CaseChat Overview and Summary

In the matter of Sinclair & Sinclair, the Federal Circuit and Family Court of Australia addressed the parenting dispute between Mr Sinclair (the father) and Ms Sinclair (the mother) concerning the care arrangements for their seven-year-old child, X. The central issue was whether X should continue to reside with the mother on Region B or return to Adelaide to live with the father. The court had to weigh the competing proposals of the parties against the statutory considerations under the Family Law Act 1975 (Cth). After considering the evidence, the court found that the father's evidence was almost entirely unreliable and the mother's explanations for the move were unconvincing. The court determined that X's best interests would be met by returning to live in Adelaide. If the mother chooses to return to Adelaide, it would be in X's best interests to live in a shared care arrangement between the parties. If the mother chooses to stay on Region B, X should live with the father and spend alternate weekends with the mother. The new arrangement should commence in Term 1, 2023. The court also made orders regarding time-sharing, communication, schooling, and other relevant matters to ensure X's well-being and maintain a meaningful relationship with both parents.

Orders