FEDERAL CIRCUIT COURT OF AUSTRALIA
| TABAC & KELMER | [2016] FCCA 1937 |
| Catchwords: FAMILY LAW – Parenting – relocation – best interests of the children – ability to maintain meaningful relationship with geographical distance. |
| Legislation: Family Law Act 1975 ss.60CC(2), 60CC(3), 65DAA(1)(a), 65DAA(1)(b), 65DAA(2)(c), 65DAA(2)(d), 65DAA(3) |
| Cases cited: Bolitho and Cohen [2005] FamCA 458 Morgan & Miles [2007] FamCA 1230 Paskandy & Paskandy [1999] FamCA 1889 |
| Applicant: | MS TABAC |
| Respondent: | MR KELMER |
| File Number: | MLC 7389 of 2013 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 26 May 2016 & 27 May 2016 |
| Date of Last Submission: | 27 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 1 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Puckey |
| Solicitors for the Applicant: | Morrison & Sawers Lawyers |
| The Respondent appeared in person. |
ORDERS
All previous parenting Orders be and are hereby discharged.
The Mother and Father have equal shared parental responsibility for the children X (“X”) born in 2007 and Y (“Y”) born in 2008 ("the children").
The children live with the Mother.
Upon the Mother’s partner obtaining full time remunerative employment with the Employer H in the City A area, and subject to order 5 hereof, the Mother be permitted to relocate the children's primary place of residence to Town B, Victoria, and pending such relocation, the children live with the Mother in Town M in order for her to comply with paragraph 6 hereof.
The Mother provide the Father at least 30 days prior written notice of the date of the children’s relocation.
Pending the relocation to Town B, the children spend time with the Father as follows:-
(a)each alternate weekend from the conclusion of school Friday until 6:30pm Sunday (or before school Monday at the Father’s election);
(b)for half of all school term holidays, as agreed between the parties, in default of agreement, the first half, from the conclusion of school on the last day of the school term until 6.00pm on the middle Saturday;
(c)as otherwise agreed between the parties in writing, such as via text message.
Pending the children’s relocation to the Town B area and to facilitate the Father’s time with the children, changeovers which do not occur at school shall occur at the C Store car park in Town M, or at any other location as agreed between the parties.
After relocating to the Town B area, the children spend time with the Father as follows:-
(a)during the school term, each first, fourth and seventh weekend:-
(i)from the conclusion of school, in the event that the Father elects to collect the children from school in Town B until 6.00pm Sunday, or;
(ii)from 6:00pm Friday, in the event that the Father elects for changeover to occur at Town O, until 6:00pm Sunday;
(b)should a public holiday long weekend fall during the school term, the children shall spend time with the Father for the duration of that public holiday long weekend:-
(i)from the conclusion of school, in the event that…
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- Tabac and Kelmer [2016] FCCA 1937
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- [2016] FCCA 1937
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CaseChat Overview and Summary
The court was required to determine whether the proposed relocation was in the best interests of the children, specifically considering the impact of geographical distance on the children's ability to maintain a meaningful relationship with the father. This involved assessing the practicalities of the proposed arrangements and the potential for the father to continue to be actively involved in the children's lives despite the increased distance.
Judge Stewart reasoned that the relocation was permissible once specific employment conditions for the mother's partner were met. The court discharged all previous parenting orders and established equal shared parental responsibility. The children were to live with the mother, but the relocation to Town B was conditional on the mother's partner obtaining full-time employment in the City A area. The orders detailed extensive time arrangements for the father, both pending relocation and after the move, to facilitate a continued meaningful relationship. These arrangements included specific provisions for weekends, school holidays, and communication between the children and the non-resident parent. The court also made orders regarding communication between the parents, injunctions against denigrating the other parent, and the provision of information to schools and medical practitioners.
Orders
Orders of the court
1.
All previous parenting Orders be and are hereby discharged.
2.
The Mother and Father have equal shared parental responsibility for the children X (“X”) born in 2007 and Y (“Y”) born in 2008 ("the children").
3.
The children live with the Mother.
4.
Upon the Mother’s partner obtaining full time remunerative employment with the Employer H in the City A area, and subject to order 5 hereof, the Mother be permitted to relocate the children's primary place of residence to Town B, Victoria, and pending such relocation, the children live with the Mother in Town M in order for her to comply with paragraph 6 hereof.
5.
The Mother provide the Father at least 30 days prior written notice of the date of the children’s relocation.
6.
Pending the relocation to Town B, the children spend time with the Father as follows:-
(a) each alternate weekend from the conclusion of school Friday until 6:30pm Sunday (or before school Monday at the Father’s election);
(b) for half of all school term holidays, as agreed between the parties, in default of agreement, the first half, from the conclusion of school on the last day of the school term until 6.00pm on the middle Saturday;
(c) as otherwise agreed between the parties in writing, such as via text message.
7.
Pending the children’s relocation to the Town B area and to facilitate the Father’s time with the children, changeovers which do not occur at school shall occur at the C Store car park in Town M, or at any other location as agreed between the parties.
8.
After relocating to the Town B area, the children spend time with the Father as follows:-
(a) during the school term, each first, fourth and seventh weekend:-
(i) from the conclusion of school, in the event that the Father elects to collect the children from school in Town B until 6.00pm Sunday, or;
(ii) from 6:00pm Friday, in the event that the Father elects for changeover to occur at Town O, until 6:00pm Sunday;
(b) should a public holiday long weekend fall during the school term, the children shall spend time with the Father for the duration of that public holiday long weekend:-
(i) from the conclusion of school, in the event that the Father elects to collect the children from school in Town B, or;
(ii) from 6:00pm on the last day of school for the week, in the event that the Father elects for changeover to occur at Town O, until 6:00pm on the day immediately preceding the children returning to school;
(c) for half of all school term holidays, as agreed between the parties, in default of agreement from 6:00pm on the last day of the school term until 4:00pm on the middle Saturday;
(d) for half of each long summer school holiday period as agreed between the parties, in default of agreement such time shall:-
(i) commence from immediately after school on the last day of the school year; and
(ii) conclude at 3:00pm on the middle Saturday of such school holidays in 2016/2017 and each alternate year thereafter, and
(iii) commence at 3:00pm on the middle Saturday; and
(iv) conclude at 3:00pm on the last Saturday of such holidays in 2017/2018 and each alternate year thereafter.
(e) on the Father's Day weekend each year from 6:00pm Friday until 6:00pm Sunday in the event the children are not already spending time with the Father;
(f) should the Father travel to Town B, then additional time in Town B as agreed between the parties in writing, such as via SMS text message;
(g) as otherwise agreed between the parties.
9.
That Father, at his election and on 14 days written notice, may spend each alternate weekend with the children PROVIDED ALWAYS THAT one period of time per 4 weeks occurs within 100km from City A (or such other distance as may be agreed).
10.
The Father's time with the child pursuant to paragraph 8(a) or 9 be suspended as follows:-
(a) during all school term holidays;
(b) during the long summer holidays;
(c) during the Mother's Day weekend each year in the event the children are not otherwise spending time with the Mother
11.
Save as is otherwise provided for in these orders, after relocating to Town B, the parties or their nominee who is known to the children meet at the Hungry Jacks restaurant at the Town D Service Station, Town O unless as otherwise agreed between the parties.
12.
For the purposes of paragraphs 8(a) and 8(b) hereof, the Father provide not less than 72 hours’ notice to the Mother, via SMS text message, as to his intention regarding where changeover shall occur (i.e. at the children's school in Town B or at Town O or such other location as agreed between the parties).
13.
The children be permitted to communicate with the parent with whom they are not with every second night between 4:00pm and 4:30pm, unless otherwise agreed between the parties.
14.
Commencing forthwith, the Mother and Father:
(a) keep the other advised at all times of their respective residential addresses and mobile telephone;
(b) advise the other immediately in the event that the children or either of them suffers any serious illness or injury;
(c) authorise any medical practitioner or allied medical practitioner upon whom the children or either of them may attend from time to time, to communicate with the other in respect to the children's medical condition and/or requirements;
(d) advise the other of all sporting and extra-curricular activities in which the children or either of them are involved and permit the other to attend such functions;
(e) authorise all school at which the children or either of them may attend, from time to time, to:
(i) provide the other, at the expense of the other, copies of all school reports, school notices and school photographs in relation to the child;
(ii) communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children's progress at his school;
(iii) permit the other to attend all school functions to which parents are normally invited, subject to any school policy in relation thereto.
15.
The parties, their servants and agents be and are hereby restrained by injunction from abusing, belittling, rebuking or otherwise denigrating the other parent or any member of their household or family in the presence or hearing of the children or either of them or permitting any other person so to do.
16.
Liberty is granted to the parties to provide a copy of these Orders to any one or more of the following:-
(a) the Principal or delegate of the Principal of the school and attend from time to time by the children, or either of them;
(b) any medical practitioner and/or allied health professional attending upon the children, or either of them.
17.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
18.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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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