FAMILY LAW – APPEAL – PARENTING – INTERNATIONAL RELOCATION – Whether Federal Magistrate fell into appealable error in his approach to determining the application for parenting orders – Where Federal Magistrate announced determination that spending ‘substantial and significant time’ with the father was in the child’s best interest at the commencement of his reasons – Suggested approach for consideration of an application for parenting orders involving international relocation explained in McCall & Cark[2009] FamCAFC 92 – Where Federal Magistrate carefully weighed all relevant evidence – Where Federal Magistrate considered all relevant s 60CC(2) and s 60CC(3) factors before reaching conclusions on appropriate parenting orders– No appealable error established.
FAMILY LAW – APPEAL – PARENTING – INTERNATIONAL RELOCATION – Whether Federal Magistrate erred in finding that the very young child’s relationship with the father would be adversely affected by the proposed international relocation – Where the excellent relationship of the child and father at the time of the hearing was not in dispute – Where there was no dispute that it was in the child’s best interests to have a meaningful relationship with both parents – Where independent children’s lawyer not appointed – Where no expert report prepared – Where it would have been appropriate / preferable for the Federal Magistrate to have had the benefit of expert evidence of the type referred to in McCall & Cark[2009] FamCAFC 92 – Where Federal Magistrate’s determination not directed to clinical attachment – No appealable error established.
FAMILY LAW – APPEAL – PARENTING – INTERNATIONAL RELOCATION – Whether Federal Magistrate erred in weight given to mother’s happiness and financial security – No appealable error established.
FAMILY LAW - COSTS – Where appeal brought bona fide – Where mother’s financial position considered – No order as to costs.
That the appeal against the orders of Federal Magistrate Howard made 26 February 2008 is dismissed.
No order as to costs.
By consent
The orders made 26 February…
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.
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AGLC
Starr & Duggan [2009] FamCAFC 115
Case
[2009] FamCAFC 115
Decision Date
CaseChat Overview and Summary
The appeal in this matter arose out of an application for parenting orders made under the Family Law Act 1975, which the Federal Magistrates Court considered and determined in February 2008. The appellant, the mother, sought to relocate with the child to New Zealand and argued that she should be permitted to do so. The respondent, the father, opposed the relocation on the basis that it would be contrary to the child’s best interests. The Federal Magistrate found in favour of the father and made orders that the child spend “substantial and significant time” with the father. The mother appealed the decision to the Full Court of the Family Court of Australia.
The primary issue for the Full Court was whether the Federal Magistrate had erred in his approach to determining the application for parenting orders. In particular, the Court considered whether the Federal Magistrate had erred in finding that the proposed relocation would adversely affect the child’s relationship with the father, and whether his Honour had erred in the weight given to the mother’s happiness and financial security. The Court also considered whether the Federal Magistrate had erred in his consideration of the appropriate parenting orders to be made, having regard to the objects and principles of Part VII of the Family Law Act.
The Full Court found that the Federal Magistrate had carefully weighed all relevant evidence and had considered all relevant factors before reaching his conclusions. The Court found that the Federal Magistrate’s approach to the determination of the application for parenting orders was consistent with the suggested approach for consideration of an application for parenting orders involving international relocation explained in McCall & Cark [2009] FamCAFC 92. The Full Court found that there was no appealable error established in the Federal Magistrate’s determination. The Court also found that there was no error in the weight given to the mother’s happiness and financial security.
The Full Court dismissed the appeal and made no order as to costs. The Court varied the orders made by the Federal Magistrate to provide that, in the event the child is spending time with the father on Mother’s Day, such time be suspended, and that the child spend a period of not less than four hours with the mother on Mother’s Day.
Orders
Orders of the court
1.
That the appeal against the orders of Federal Magistrate Howard made 26 February 2008 is dismissed.
2.
No order as to costs.
By consent
3.
The orders made 26 February 2008 be varied to provide the following additional order:
11A. In the event the child is spending time with the father on Mother’s Day that such time be suspended, and that the child spend a period of not less than four hours with the mother on Mother’s Day.
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
Thereafter the Federal Magistrate set out s 65DAA(3) which section defines what is encompassed by the phrase “substantial and significant time”. His Honour then moved to record, albeit briefly, in paragraphs 16 and 17, that both parties had demonstrated good parenting skills, and each had a good relationship with the child. Howard FM then said at paragraph 18:In my view, there should be an order that enables the child to spend substantial and significant time with both parents in accordance with s.65DAA(2) and s.65DAA(3). I am of the view that an order that the child spend substantial and significant time with both parents is in the best interests of the child in this case, [C]. My reasons for reaching these conclusions are (essentially) stated in paragraphs 16 and 17 herein and from paragraph 19 onwards herein. [our emphasis] At paragraphs 19 to 24, the Federal Magistrate examined the mother’s proposal that she be permitted to relocate the child’s residence to New Zealand and to come to Australia “for 4-6 weeks each year”. His Honour found this proposal would “[e]ssentially, therefore, [have the effect that] the child will be ‘holidaying’ in Australia.” Having explained his understanding of what is encompassed in a child’s daily routine, including having a parent attend at pre-school and at special parent days, the Federal Magistrate concluded at paragraph 25: This could not be achieved if the child is living in New Zealand and the father is in Australia. If the child lives in New Zealand and comes to spend time in Australia the child will essentially be “holidaying overseas” for 4 – 6 weeks per year while spending time with the father (as proposed by the mother). In my view, this proposal does not allow compliance with s.65DAA(3)(b)(i). His Honour then turned his consideration to s 65DAA(3)(b)(ii) (which provision sets out the requirement that a parent spend time with a child on occasions and events which are of particular significance to the child) and found it was unlikely this requirement could be satisfied if the mother relocated to New Zealand. He said although the mother proposed an order which was predicated on the father being entitled to participate in all aspects of the child’s schooling, that this order “could not possibly be achieved if the father is in Australia and the mother and the child are in New Zealand”. At this point in his reasons, his Honour set out the objects and the principles underpinning the provisions of Part VII of the Act (ss 60B(1) and (2)). He thereafter set out s 60CA (which section provides that a court, when deciding whether to make a particular parenting order, must regard the best interests of the child as the paramount consideration), and then set out the primary and additional considerations found in ss 60CC(2) and (3) of the Act. The Federal Magistrate recorded there was no controversy that it was “to the child’s benefit to have a meaningful relationship with both of the child’s parents”. He also noted that violence or abuse were not relevant in this case.