Tait and Hahn - [2016] FCCA 353

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAIT & HAHN

[2016] FCCA 353

Catchwords:
FAMILY LAW – Parenting – Relocation – Mother unilaterally relocated a young child’s residence from Sydney to Melbourne – allegations of family violence and drug and alcohol use – expense of travel – in the best interests of the child to allow relocation.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Hall & Hall (1979) FLC 90-713
AMS v AIF (1999) 199 CLR 160

Taylor & Barker [2007] FamCA 1246
Duggan & Duggan [2009] FamCAFC 115
Heaton & Heaton [2012] FamCAFC 139
Morgan & Miles (2007) FLC 93-343

Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

Applicant:

MS TAIT

Respondent:

MR HAHN

File Number:

MLC 8089 of 2015

Judgment of:

Judge Baker

Hearing date:

7, 8, 9 and 10 December 2015

Date of Last Submission:

10 December 2015

Delivered at:

Hobart

Delivered on:

26 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms Swann

Solicitors for the Applicant:

RNG Lawyers

Counsel for the Respondent:

Ms Sevdalis

Solicitors for the Respondent:

Santone Lawyers

ORDERS

The parties have equal shared parental responsibility for the child, X born (omitted) 2009 (“the child”).
The child live with the mother and the mother be permitted to relocate the child’s residence to the Melbourne metropolitan area in Victoria.
The child spend time with the father:
(a)During school terms, unless otherwise agreed:
(i)On the fourth and seventh weekend per term in Sydney, with X to depart Melbourne no earlier than 6:00 pm and no later than 7:00pm Friday and to depart Sydney no earlier than 5:00 pm on Sunday;
(ii)On one weekend per month, at the option of the father, to occur in Melbourne from after school on Friday (or 3:00 pm if not a school day) until 5:00pm Sunday, such weekend to be nominated by the father in writing within 7 days prior to the commencement of each school term;
(iii)Such other time as agreed in writing;
(iv)For the Sydney trips the mother arrange the child’s airfares, with the father to reimburse the mother for one-half of the child’s airfares within 24 hours of the mother’s written notification to the father of such cost;
(v)The father pay the travel costs and accommodation for each visit to Melbourne.
(vi)Each party to pay their own costs of travel when accompanying the child.
(b)For school term holidays, unless otherwise agreed:
(i)From 25 March 2016 a period of seven days and nights in Sydney, changeover to occur at 11:00 am for both collection and return at Sydney Airport. In the event that the child becomes distressed, the father shall return her to the mother for the day. The parties shall equally share the cost of the child’s airfares;
(ii)during the balance of 2016 and each alternate year thereafter for the first half of the holiday period, from the last day of school term, with X to depart Melbourne no earlier than 6:00 pm and no later than 7:00 pm, until the middle…

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 Tait and Hahn

Details

AGLC: Tait and Hahn [2016] FCCA 353
Case: [2016] FCCA 353
Decision Date: 26 February 2016

CaseChat Overview and Summary

The parties in this matter were the mother and the father, referred to as Tait and Hahn respectively, concerning parenting arrangements for their child, X. The dispute centred on the mother's application to relocate the child's residence to Melbourne and the father's application for orders regarding the child's time with him. The decision was made by Judge Baker.

The court was required to determine the most appropriate parenting orders for the child, X, considering the proposed relocation and the existing parental relationship. This involved assessing the best interests of the child, including arrangements for shared parental responsibility, the child's primary residence, and the specific time the child would spend with each parent, particularly in light of the geographical distance between Sydney and Melbourne.

Judge Baker ordered that the parties have equal shared parental responsibility for the child. The child was to live with the mother, who was permitted to relocate the child's residence to the Melbourne metropolitan area. The court then detailed extensive provisions for the child to spend time with the father in Sydney, including during school terms and holidays, with specific arrangements for travel, costs, and changeovers. Further orders addressed communication between the child and parents, notification of medical information, and injunctions restraining certain behaviours by the parents in the child's presence.

Orders

Orders of the court

The parties have equal shared parental responsibility for the child, X born (omitted) 2009 (“the child”).

The child live with the mother and the mother be permitted to relocate the child’s residence to the Melbourne metropolitan area in Victoria.

The child spend time with the father:

(a) During school terms, unless otherwise agreed:

(i) On the fourth and seventh weekend per term in Sydney, with X to depart Melbourne no earlier than 6:00 pm and no later than 7:00pm Friday and to depart Sydney no earlier than 5:00 pm on Sunday;

(ii) On one weekend per month, at the option of the father, to occur in Melbourne from after school on Friday (or 3:00 pm if not a school day) until 5:00pm Sunday, such weekend to be nominated by the father in writing within 7 days prior to the commencement of each school term;

(iii) Such other time as agreed in writing;

(iv) For the Sydney trips the mother arrange the child’s airfares, with the father to reimburse the mother for one-half of the child’s airfares within 24 hours of the mother’s written notification to the father of such cost;

(v) The father pay the travel costs and accommodation for each visit to Melbourne.

(vi) Each party to pay their own costs of travel when accompanying the child.

(b) For school term holidays, unless otherwise agreed:

(i) From 25 March 2016 a period of seven days and nights in Sydney, changeover to occur at 11:00 am for both collection and return at Sydney Airport. In the event that the child becomes distressed, the father shall return her to the mother for the day. The parties shall equally share the cost of the child’s airfares;

(ii) during the balance of 2016 and each alternate year thereafter for the first half of the holiday period, from the last day of school term, with X to depart Melbourne no earlier than 6:00 pm and no later than 7:00 pm, until the middle Saturday of the holiday period with X to depart Sydney no earlier than 5:00 pm;

(iii) during 2017 and each alternate year thereafter, for the second half of the holiday period, from the middle Saturday of the holiday period at 11:00 am until the Sunday before school resumes at 11:00 am;

(iv) the parties each pay for one-half of the child’s airfares, with the father paying for a one way ticket for the child's travel to Sydney and the mother paying for a one way return ticket for the child;

(v) Each party to pay their own costs of travel when accompanying the child.

(vi) Upon the child being able to travel as an unaccompanied minor, the parties each pay for one-half of the child’s airfares, with the father paying for a one way ticket for the child's travel to Sydney and the mother paying for a one way return ticket for the child;

For the 2016/2017 Christmas school holidays, unless otherwise agreed, for two non-consecutive weeks as follows:

from 10:00 am Christmas Eve until 6:00 pm on 31 December; and

from 6:00 pm on 21 January until 6:00 pm on 28 January

During the 2017/2018 Christmas school holidays and each alternate year thereafter, unless otherwise agreed, for the second half of the holiday period commencing at 11:00 am on the middle calendar day of the school holiday period and concluding at 11:00 am on the day before school commences.

During the 2018/2019 Christmas school holidays and each alternate year thereafter, unless otherwise agreed, for the first half of the holiday period, with X to depart Melbourne no earlier than 6:00 pm and no later than 7:00pm Friday and to conclude at 11:00 am on the middle calendar day of the school holiday period.

(d) At the option of the father on (omitted) (X’s birthday) in Melbourne from after school until 6:00 pm if a school day and from 10:00 am until 2:00 pm if a non-school day, unless otherwise agreed. If the child is spending holiday time or is otherwise spending time with him on her birthday, the child spend time with the mother from 10:00am until 2:00pm:

(e) Such further time as agreed in writing.

That for the purpose of the child’s travel to and from Sydney, unless otherwise agreed between the parties:

(a) That from the age of 8, the child may travel by aeroplane unaccompanied (subject to the requirements of the airline) and the parent responsible for arranging the travel pursuant to these orders must comply with any requirements of the airline regarding children travelling unaccompanied;

(b) That the parties shall provide to each other notification in writing by email or text message of their means of travel, departure and arrival times and flight numbers at least 48 hours prior to the said travel, and inform the other of any changes to the itinerary as soon as known.

In the event that flight times/bookings change due to unforeseen circumstances beyond the parties’ control, the parties will provide each other notification in writing by email or text message of any variations necessary to changeover times due to flight bookings at least 48 hours prior to the said travel.

Changeover shall occur:

(a) For time spent in Melbourne on a non-school day, unless otherwise agreed, at (omitted) Station Melbourne;

(b) For time spent in Melbourne on a school day, unless otherwise agreed, at the child’s school.

Within fourteen (14) days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary to authorise the school attended by the child to provide to each of the parties, copies of any material ordinarily provided to parents, including but not limited to, school reports, reports on school progress and behavioural issues, school photograph order forms, circulars and school bulletins, invitations, and notices of parent and teacher meetings and sporting events, and in the event that the child’s school refuses or is unable to provide copies of same to both the mother and the father individually, then the parent who is in receipt of this information shall provide copies to the other parent as soon as is practicable.

Each party shall:

(a) in the event that the child is prescribed medication, notify the other of the prescribed medication as soon as is practicable thereafter, but not later than twenty four (24) hours after the medication has been prescribed and ensure that the medication will be provided to the other parent at changeover and the party being provided the medication will ensure that it is given to the child as prescribed and returned to that parent at the conclusion of the child’s time with the other parent.

(b) In the event that any of the child is involved in a medical emergency, notify the other immediately and provide details of the health care professional or medical facility upon which the child attends;

(c) provide the other party a copy of any report received with respect to any medical treatment for the child within 48 hours of having obtained that report.

Each party shall inform and keep the other informed at all times of their respective residential addresses, telephone contact numbers, email addresses, and any other information necessary for the child to communicate with the other party, and shall notify the other party of any changes thereto within forty eight (48) hours of the date of such change occurring.

10.

The party who the child is living/spending time with in accordance with these orders shall facilitate telephone or such other similar means of communication with the other parent, at any reasonable time, upon the request of the child.

11.

The parent who is not living/spending time with the child facilitate the other parent communicating with the child by telephone, face time or Skype as follows:

(a) each Monday, Wednesday and Friday between 3.30pm and 4.00 pm , or such other days and times as may be agreed

(b) Mother’s Day at 10am (if the Mother is not otherwise spending time with the child);

(d) Christmas Day at 10am;

(e) The child’s birthday at 3.30-4.00pm; and

(f) The parent’s birthday at 3.30-4.00pm;

and at any time is requested by the child and each parent, and the parent shall provide the child with privacy.

12.

Instead of communication via telephone, the parties are also at liberty to communicate with the child by skype, text message or other such electronic means, if those means are available.

13.

Each of the parties are hereby restrained by injunction from:

(a)showing the child documents in these proceedings, discussing these proceedings in the presence or hearing of the child, or permitting any other person to do so;

(b) abusing, insulting, belittling, rebuking or otherwise denigrating the child, the other party, or any member of the other party’s household or extended family to or in the presence or hearing of the child (and use their best endeavours to ensure that no other person does so);

(c) consuming illicit drugs or non-prescription medication when the child is in their respective care or 48 hours prior to the child being in either parties’ care;

(d) smoking in the presence of the child;

(e) consuming alcohol while the child is in their care; and

(f) using physical discipline with the child.

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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