FAMILY COURT OF AUSTRALIA
| TANNER & TANNER | [2011] FamCA 476 |
| FAMILY LAW – CHILDREN – RELOCATION – Where there is a history of family violence and high conflict - where the mother is the primary carer for the children – Where the mother has established a long term relationship online with a resident of Canada who has a child in Canada – Where sufficient arrangements have been made for contact and communication – where it is in the children’s best interests for relocation with the children to be permitted |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Vanderhum v Doriemus (2011) |
| APPLICANT: | Mr Tanner |
| RESPONDENT: | Ms Tanner |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Reaston |
| FILE NUMBER: | CSC | 615 | of | 2009 |
| DATE DELIVERED: | 22 June 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 25 - 27 October 2010 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Benson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | O'Reilly Stevens Bovey Lawyers |
Orders
All previous parenting orders are discharged.
The mother have sole parental responsibility for the three children of the marriage L born … November 1994, H born … October 1997 and B born … June 2001, provided that:
2.1.Other than in emergencies, she consult with the father before making any major decisions about the children’s care welfare or development, except as expressly allowed for in these orders, and take the father’s views into account before making any firm decision; and
2.2.Inform the father of any decision she does make.
There be no further orders regarding the child L, subject to Order 24.
H and B, (“the children”) shall live with the mother at all times other than as specified in these orders.
The mother shall be at liberty to relocate with the children to City AA in Canada.
The mother shall provide the father in writing, at least 60 days prior to the children’s intended departure from Australia, with details of the date and time of their departure.
Until the children relocate pursuant to Order 5 and subject to Orders 8 and 9 below, they will spend time with the father as follows:
7.1.During school terms, on each alternate weekend from after school on Friday until before school on the following Monday;
7.2.One half of each school holiday period, (other than Christmas holidays) ;
7.3.On H’s and, if applicable, on B’s birthdays, from 3pm until 7pm if the birthday falls on a school day and from 12pm to 7pm if the birthday falls on a weekend day, unless agreed to in writing;
7.4.On Father’s Day from 9am until 5.30pm;
7.5.If the children…
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- Tanner and Tanner [2011] FamCA 476
- Case
- [2011] FamCA 476
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary caregiver of the children, the extent of the father's future involvement, and the arrangements for the children's residence and communication with both parents, particularly in light of the proposed international relocation. Key issues included the terms of parental responsibility, the children's living arrangements, and the practicalities of maintaining a relationship between the children and the father following the move.
Watts J ordered that the mother have sole parental responsibility for the children, with specific provisions requiring her to consult the father on major decisions and inform him of any decisions made. The children were ordered to live with the mother, and she was granted liberty to relocate with them to Canada. The orders detailed extensive arrangements for the children's time with the father both before and after the relocation, including provisions for communication, travel costs, and the father's conduct during his time with the children. The court also authorised the mother to obtain passports for the children and to facilitate their attendance at therapy and counselling.
Orders
Orders of the court
1.
All previous parenting orders are discharged.
2.
The mother have sole parental responsibility for the three children of the marriage L born … November 1994, H born … October 1997 and B born … June 2001, provided that:
2.1. Other than in emergencies, she consult with the father before making any major decisions about the children’s care welfare or development, except as expressly allowed for in these orders, and take the father’s views into account before making any firm decision; and
2.2. Inform the father of any decision she does make.
3.
There be no further orders regarding the child L, subject to Order 24.
4.
H and B, (“the children”) shall live with the mother at all times other than as specified in these orders.
5.
The mother shall be at liberty to relocate with the children to City AA in Canada.
6.
The mother shall provide the father in writing, at least 60 days prior to the children’s intended departure from Australia, with details of the date and time of their departure.
7.
Until the children relocate pursuant to Order 5 and subject to Orders 8 and 9 below, they will spend time with the father as follows:
7.1. During school terms, on each alternate weekend from after school on Friday until before school on the following Monday;
7.2. One half of each school holiday period, (other than Christmas holidays) ;
7.3. On H’s and, if applicable, on B’s birthdays, from 3pm until 7pm if the birthday falls on a school day and from 12pm to 7pm if the birthday falls on a weekend day, unless agreed to in writing;
7.4. On Father’s Day from 9am until 5.30pm;
7.5. If the children are still in Australia, on the father’s birthday from 3pm until 7pm if the birthday falls on a school day and from 12pm to 7pm if the birthday falls on a weekend day, unless agreed to in writing;
7.6. If the children are still in Australia, Christmas school holidays on a week about rotational basis provided they are returned to the mother by 5pm the Saturday prior to the commencement of the new school year;
7.7. If the children are still in Australia, from 5pm on 24 December 2011 to 4pm 25 December 2011.
8.
Wherever possible the changeovers will occur to or from school and otherwise, to or from the children’s home, and:
8.1. In the event the father cannot collect the children from school, his time will commence at 5.30pm Friday and he will notify the mother via email or text message at least 24 hours beforehand;
8.2. In the event the father cannot return the children to school on the Monday, he will return the children to the mother at 5.30pm Sunday, and he will notify the mother at least 24 hours beforehand via email or text message.
9.
Notwithstanding Orders 7 and 8, the children will spend the following times with their mother where they are otherwise spending time with their father:
9.1. On the children’s birthday , unless they are with their father, from 3pm to 7pm;
9.2. On Mother’s Day from 9am until 5.30pm;
9.3. On the mother’s birthday from 9am until 5.30pm.
10.
Subject to Orders 11, 12, 13 14 and 18 upon the relocation referred to in Order 5, the Father will spend time with the children:
10.1. in Canada:
10.1.1. every alternate year, commencing in the first year after their relocation for up to the entirety of the children’s summer school break; and
10.1.2. on up to four other occasions provided that the period does not exceed 3 consecutive weeks (excluding the periods of 48 hours referred to in Order 11.3); and
10.2. in Australia:
10.2.1. each other year for the duration of the children’s summer school holiday; and
10.2.2. For up to one 3 week block period (excluding the periods of 48 hours referred to in Order 12) at any time the mother and children travel to Australia.
10.3. If possible, on the children’s birthdays from 3pm to 7pm.
11.
The father’s time with the children in Canada will be conditional upon:
11.1. the father giving the mother at least 2 months notice of his intention to visit and spend time with the children;
11.2. the father giving the mother details of his itinerary including his accommodation arrangements for himself and the children at least 30 days prior to his travel;
11.3. the children returning to their mother’s care for no less than 48hours after each 7 consecutive day period, unless the parties agree otherwise in writing; and
11.4. the father will ensure the children attend school every school day.
12.
During all time the children spend with the father in Australia they will not spend more than a period of 7 consecutive days with the father without spending a 48 hour period with the mother or the maternal grandparents, at the mother’s nomination, unless the parties agree otherwise in writing.
13.
In the event the mother travels with the children to Australia, she will give the father 60 days notice of her travel dates and the father will give the mother at least 30 days notice of his intended time to be spent with the children, unless the parties agree otherwise in writing.
14.
When the children relocate, the father will communicate with the children:
14.1. by the mother facilitating telephone communication on her telephone once each Sunday for a period not exceeding 30minutes, such times to coincide with when both the father and the children are in normal waking hours;
14.2. at all reasonable times with the father to initiate contact with the children via personal phone, Skype account (or any similar facility), MSN account, PSN account, Facebook account, email or other agreed electronic means or by normal post;
14.3. and for the purpose of facilitating communication the mother will arrange forthwith upon their relocation:
14.3.1. internet connection to allow the children to access Skype, MSN, email and facebook accounts to communicate with the father; and
14.3.2. personal phone for H, transferred to a Canadian provider, and the new number for H provided to the father within 7 days of the new number being activated;
14.4. the father is to provide his own telephone and internet access details at all times; and
14.5. each parent is to keep the other informed of any new contact addresses, electronic addresses and phone numbers within 7 days of any change.
15.
Until the children relocate the father will communicate with them at all reasonable times via electronic means.
16.
The father is restrained from contacting the mother, other than in emergencies, except by email, or as otherwise agreed to in writing from time to time, and only in relation to issues pertaining to the children.
17.
In the event of emergencies which involve, or will impact, upon the children’s welfare, the parents are to contact the other or their nominee via email or mobile phone.
18.
The father is restrained from, and his time with the children is conditional upon he not:
18.1. using physical force on the children;
18.2. calling the children foul names;
18.3. calling the mother foul names within the presence or hearing of the children;
18.4. denigrating the mother or her partner within the presence of the children;
18.5. subjecting the children to physical violence or being physically violent to any person in the presence or hearing of the children;
18.6. being verbally abusive to the children; and
18.7. being verbally abusive to any person in the presence or hearing of the children.
19.
The mother will apply the amount equivalent to one financial year’s payment received from the father for child support towards the cost of:
19.1. the children travelling once, bi-annually to and from Australia;
19.2. the father travelling once bi annually to and from Canada;
and where such travel costs exceed the child support received by the mother for that corresponding financial year, the remaining balance shall be split between the parties equally.
20.
The father shall meet any other of his own travel costs.
21.
The mother be authorised to sign all documents and do all acts necessary to obtain a passport for each of the children, at her expense, and thereafter, the mother be authorised to sign any documents relevant to the children’s residence or citizenship.
22.
The mother shall facilitate B attending speech therapy, as is recommended by his speech therapist.
23.
The mother shall continue to facilitate such counselling for H and B as recommended by Ms O.
24.
The Independent Children's Lawyer is to make arrangements to meet with the family consultant and the children to explain to the children (including L) the effect of the orders that have been made.
25.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
NOTATION:
26.
The mother has permission to do anything in her power to have these orders recognised by an appropriate court in Canada exercising similar jurisdiction.
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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