Smith and Smith - [2008] FMCAfam 639

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH & SMITH

[2008] FMCAfam 639

FAMILY LAW – Children – relocation – mother wishes to move with children to Hobart – whether father agreed to that move – relocation principles – best interests of children.

Family Law Act1975 (Cth) ss.60B, 60CA, 60CC and 65DAA

Morgan & Miles (2007) FLC 93-343
AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A; Relocation Approach (2000) FLC 92-035
U v U (2002) 211 CLR 238, (2002) FLC 93-112
P & P [2006] FMCAfam 518
Bolitho and Cohen (2005) FLC 93-224
Godfrey & Sanders [2007] FamCA 102
M & S (2007) FLC 93-313
Bright and Bright v Bright and Mackley (1995) FLC 92-570

Applicant:

MR SMITH

Respondent:

MS SMITH

File Number:

LNC 725 of 2007

Judgment of:

Roberts FM

Hearing dates:

7 & 8 February 2008

Date of Last Submission:

8 February 2008

Delivered at:

Devonport

Delivered on:

27 June 2008

REPRESENTATION

Counsel for the Applicant:

Mr P McVeity

Solicitors for the Applicant:

McVeity & Associates

Counsel for the Respondent:

Mr P Fitzgerald with Ms A. Boote

Solicitors for the Respondent:

Legal Aid Commission of Tasmania

ORDERS

That MR SMITH (“the father”) and MS SMITH (“the mother”) have equal shared parental responsibility for [A] born in 2003 and [B] born in 2006 (“the children”)
That the children live with the mother.
That the mother be permitted to relocate with the children to Hobart after the end of the 2008 school year.
That until the mother and the children relocate to Hobart, the children are to spend time with the father for the first three nights of each of his four day block of rostered days off work.
That the father have reasonable telephone communication with the children and for such purpose the mother is to keep the father informed of the telephone number on which they can be contacted.
That the parties have liberty to apply in the event that they are unable to agree upon the time that the children are to spend with the father after they relocate to Hobart.

IT IS NOTED that publication of this judgment under the pseudonym Smith & Smith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

LNC 725 of 2007

MR SMITH

Applicant

And

MS SMITH

Respondent

REASONS FOR JUDGMENT

Essentially, this case is about where two children should live with their mother - on the North West Coast of Tasmania or in Hobart.

Background

The applicant, MR SMITH (“the father”) and the respondent MS SMITH (“the mother”) commenced cohabitation in 1999. They married in 2002 and have two children, a daughter [A] born in 2003 and a son [B] born in 2006 (“the children”).
The parties separated at the end of March 2007.
The father works as a diesel mechanic for a national company and the mother works part time for a government agency.
Since the parties separated, the father has changed his…

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 Smith and Smith

Details

AGLC: Smith and Smith [2008] FMCAfam 639
Case: [2008] FMCAfam 639
Decision Date: 27 June 2008

CaseChat Overview and Summary

In the Family Court of Australia, the case of Smith and Smith involved a dispute between the father and mother regarding the care and custody of their two children, [A] born in 2003 and [B] born in 2006. The primary concern was the allocation of parental responsibilities and the living arrangements of the children post-separation.

The legal issues that required determination included the apportionment of parental responsibility, the residence of the children, the mother's proposed relocation to Hobart, and the visitation schedule for the father. Additionally, the court had to address the communication arrangements between the father and the children.

The court deliberated on the evidence presented by both parties, assessing the best interests of the children as the paramount consideration. The court determined that equal shared parental responsibility was in the children's best interests, allowing both parents to be involved in significant decision-making. It was decided that the children would reside with the mother, reflecting her ability to provide a stable environment. The mother was granted permission to relocate to Hobart at the end of the 2008 school year, with the father having specified visitation rights until then. The visitation schedule was set to accommodate the father's work commitments, ensuring minimal disruption to the children's routine. The court also mandated reasonable telephone communication between the father and the children, with the mother responsible for updating the father on their contact details.

The court's orders provided a balanced approach, recognising the importance of both parents in the children's lives while ensuring their well-being and stability. The final orders included equal shared parental responsibility, the children residing with the mother, relocation to Hobart, visitation rights for the father, and provisions for telephone communication. The parties were granted liberty to apply if they could not agree on future visitation arrangements post-relocation.

Orders

Orders of the court

That MR SMITH (“the father”) and MS SMITH (“the mother”) have equal shared parental responsibility for [A] born in 2003 and [B] born in 2006 (“the children”)

That the children live with the mother.

That the mother be permitted to relocate with the children to Hobart after the end of the 2008 school year.

That until the mother and the children relocate to Hobart, the children are to spend time with the father for the first three nights of each of his four day block of rostered days off work.

That the father have reasonable telephone communication with the children and for such purpose the mother is to keep the father informed of the telephone number on which they can be contacted.

That the parties have liberty to apply in the event that they are unable to agree upon the time that the children are to spend with the father after they relocate to Hobart.

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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