Spencer and Davidson - [2011] FMCAfam 529

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SPENCER & DAVIDSON

[2011] FMCAfam 529

FAMILY LAW – Parenting – relocation – mother in [B] – father on Gold Coast.

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

Carlyle & Muldoon [2011] FamCA 51
Clark & Ryan (1960) 103 CLR 486
Collu v Rinaldo [2010] FamCAFC 53 (25 March 2010)
MRR & GR [2010] HCA 4
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Applicant:

MR SPENCER

Respondent:

MS DAVIDSON

File Number:

BRC 5631 of 2010

Judgment of:

Howard FM

Hearing dates:

21 & 22 February & 7, 8 & 9 March 2011

Date of Last Submission:

9 March 2011

Delivered at:

Brisbane

Delivered on:

25 July 2011

REPRESENTATION

Counsel for the Applicant:

Mr Linklater-Steele

Solicitors for the Applicant:

DK Law

Counsel for the Respondent:

Mr Sullivan SC

Solicitors for the Respondent:

Small Myers Hughes

ORDERS

The parties have 21 days to submit draft orders to reflect these Reasons for Judgment.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 5631 of 2010

MR SPENCER

Applicant

And

MS DAVIDSON

Respondent

REASONS FOR JUDGMENT

Background

The applicant father, Mr Spencer, was born [in] 1970. The respondent mother, Ms Davidson, was born [in] 1980.
The parties commenced their relationship on 24 March 2005. The parties commenced cohabitation in approximately August 2005. The parties were married [in] 2008. The parties separated on a final basis on 4 May 2010.
The parties have two children. [X] was born [in] 2007. [Y] was born [in] 2010.
The parties cannot agree on parenting orders. The mother wants to live with the children in [B], New South Wales. The father wants the children to return to live primarily on the Gold Coast, Queensland.
The father has one child from a previous relationship. That child is [Z]. [Z] is nine years of age. [Z] was born [in] 2001. [Z] lives with her mother (Ms L) and her stepfather on the Gold Coast. [Z] spends time with the father (Mr Spencer).
The parties were separated under the same roof for a period of time. The mother left the former matrimonial home on 19 May 2010.
At or around that time, the mother and the two children left the Gold Coast and went to [T], New South Wales, in order to stay with the maternal grandfather. The father has stated in his affidavit filed 25 January 2011, inter alia:
“7. It was agreed at that time that it would be appropriate for her and the children to travel to [T] to be with her father for a short holiday whilst we sorted everything out. It was also agreed that such travel would be for a short time only and that she would return a short time later so that she would be living on the Gold Coast. During counselling with Relationship’s Australia we signed a parenting plan…

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 Spencer and Davidson

Details

AGLC: Spencer and Davidson [2011] FMCAfam 529
Case: [2011] FMCAfam 529
Decision Date: 25 July 2011

CaseChat Overview and Summary

Spencer and Davidson involved a dispute between the parents of two young children over their residence and contact arrangements. The case was heard by the Family Court of Australia, which had to determine the best interests of the children in light of the evidence and the legal framework provided by the Family Law Act 1975. The primary concern was the living arrangements of the children and whether they should remain with their mother in New South Wales or return to live with their father on the Gold Coast in Queensland.

The court was required to decide on the primary considerations for determining the children's best interests as outlined in section 60CC(2) of the Family Law Act, which includes the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm. The court also needed to consider the additional factors listed in section 60CC(3) of the Act. A significant issue in the case was the mother's allegations of the father's controlling and aggressive behaviour, which needed to be weighed in the context of the children's safety and well-being.

The court accepted the mother's evidence regarding the living arrangements and her decision to relocate to New South Wales for the children's stability and support network. The court found that both parents had much to offer the children and that it would be beneficial for the children to maintain a meaningful relationship with both parents. The court noted that there was no evidence to suggest that the children were at risk of harm. However, the court acknowledged the mother's allegations of the father's behaviour, which would be considered in the broader context of the children's welfare. The court concluded that the children's best interests would be served by allowing them to reside with their mother in New South Wales, with the father having agreed contact times.

The court ordered that the parties had 21 days to submit draft orders reflecting these reasons for judgment, aiming to establish a parenting arrangement that would support the children's relationship with both parents while ensuring their safety and well-being.

Orders

Orders of the court

The parties have 21 days to submit draft orders to reflect these Reasons for Judgment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The mother has included a copy of the parenting plan as annexure PJD1 to her affidavit filed 24 January 2011. The mother’s copy of the parenting plan is a more complete copy than the annexure included in the father’s affidavit. The parenting plan itself relevantly states – in handwriting – on the fourth page (or sheet) of the annexure:“OUR DECISIONS ABOUT OUR LIVING ARRANGEMENTSChildren to remain with Ms Davidson at “[omitted]”, [T] (Mr D’s residence).[X] to be able to stay over with [Mr Spencer] at agreed times.Children to reside in Queensland within a timeframe as agreed between parents (within a reasonable driving distance).”I accept the mother’s evidence as quoted above from paragraphs 14 to 19 of her affidavit filed 24 January 2011. In my view, the mother had very little alternative at the time of separation. She was the primary carer for a three year old ([X]) and a one month old ([Y]). The mother was tired and she had no accommodation readily available to her on the Gold Coast. I note that the mother states further in her affidavit, inter alia:“23. The children and I lived with my father and his partner in [T] from 19 May 2010 until 26 June 2010 at which time I moved with the children to [B] (in NSW) where we have since remained.24. I left [T] as my father (who is nearly 60 years of age) could only provide limited assistance to the children and once he advised me that he intended on selling the [T] property. I decided it would be more advantageous for the children and I to live in [B] where I have a large network of family support and could provide a stable living environment for the children.25. At paragraph 2i of Mr Spencer's Affidavit filed 27 July 2010 he accuses me of moving to [B] after my Solicitor was served with his Initiating Application on 24 June 2010 such that “at that time [I] would have been aware that [he] opposed any relocation of the children.” This is not correct.26. I had already made arrangements to move to [B] before I was aware of Mr Spencer’s intended Application. Mr Spencer did not tell me he was intending to apply to this Court. Only after Mr Spencer’s Solicitors had filed his Application did they tell my Solicitors that they had filed one. Mr Spencer’s Solicitor did not indicate to my Solicitors before service exactly what Orders Mr Spencer was seeking. I was told he had filed an Application before I completed my move to [B] but I was not told that he sought an Order that I return with the children to live on the Gold Coast and I only became aware of this when I was provided with a copy of Mr Spencer’s Application and supporting documents on 29 June 2010 (after I had already moved to [B]) when my Solicitor emailed the documents to me. Annexed hereto and marked “PJD3” is a true copy of the email from my Solicitor attaching the said documents.”I accept this evidence. The maternal grandfather is currently trying to sell his property at [T] and intends moving further south in New South Wales, closer to the town of [B]. The maternal grandmother and various other members of the maternal family live in the town of [B].

Ratio Decidendi

Legal Principle Established

The legislation then sets out, in section 60CC, how it is that a Court is to determine what is in a child’s best interests. The primary considerations are set out in section 60CC(2) of the Act. That section states:“Primary considerations (2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” The Court has had the benefit of a family report from Mr J. There is no doubt that both of these parents have much to offer the two children. I find that there will be benefits to both children in having a meaningful relationship with both parents. In a recent decision of the Family Court of Australia, O’Reilly J in Carlyle & Muldoon [2011] FamCA, her Honour stated at paragraphs 71 and 72:“71. The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court conclude in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.72. Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.” Looking prospectively it is clear on the evidence of this case that there will be a benefit to both children in having a meaningful relationship with both parents. That much is clear from the evidence of Mr J. Given the young age of the children, the best outcome for the children would be achieved if both parents were living in the same city or town. This much is clear from the evidence of Mr J. In this particular case, there is no evidence before the Court to suggest that the children in any way need protection from physical or psychological harm. An issue has arisen in the case whereby the mother alleges that the father engaged in controlling and aggressive behaviour towards her – both during and after the relationship. I will refer to that issue later in these Reasons for Judgment. There is no evidence that the children have in any way been exposed to any form of physical or psychological harm. Additional considerations for the Court in determining what is in a child’s best interests are set out in the legislation in section 60CC(3).