FAMILY COURT OF AUSTRALIA
| TAYLOR & BARKER | [2007] FamCA 1246 |
| FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE – RELOCATION – Where Federal Magistrate made orders allowing the mother to relocate the child from Canberra to North Queensland so that the mother could live with the father of her second child whom she wished to marry. Whether Federal Magistrate erred in his application of the Family Law Act 1975 as amended by the Family Law (Shared Parental Responsibility) Act 2006 – Whether Federal Magistrate erred in dealing with the issue of relocation and the mother’s reasons for wishing to relocate as a separate issue – Whether Federal Magistrate erred in failing to consider whether the child spending “equal time” or “substantial and significant time” with each parent was “reasonably practicable” – Discussion of the application of ss 60CC and 65DAA of the Family Law Act where one party wishes to change the residence of the child from the place where the other parent lives. Whether Federal Magistrate failed to consider the likely effect on the child of the separation from his father and paternal grandparents – Whether Federal Magistrate failed to adequately evaluate the nature and strength of the relationship between the child and his father and paternal grandparents – Whether the Federal Magistrate adequately evaluated the likelihood of the mother’s new partner relocating himself should the orders prevent relocation of the child – The Court was not persuaded that these grounds of appeal had merit. Whether the Federal Magistrate gave excessive weight to the mother’s reasons for and desire to relocate – Whether Federal Magistrate erred in speculating as to the consequences of the mother not being permitted to relocate in the absence of evidence from her as to that matter – Majority found there was no substance in these grounds. APPEAL DISMISSED. COSTS – Each party to pay his or her own costs of and incidental to the appeal. |
| Family Law Act 1975 (Cth) - s 60B, s 60CA, s 60CC, s 61DA, s 65DAA Family Law (Shared Parental Responsibility) Act 2006 (Cth) |
A v A: Relocation Approach (2000) FLC 93-035
Goode & Goode (2006) FLC 93-286; (2007) 36 FamLR 422
U v U (2002) 211 CLR 238; (2002) FLC 93-112
Bolitho & Cohen (2005) FLC 93-224
Bennett & Bennett (1991) FLC 92-191
Sun Alliance Insurance Ltd v Massaud (1989) VR 8
| APPELLANT: | Mr Taylor |
| RESPONDENT: | Ms Barker |
| FILE NUMBER: | CAM | 669 | of | 2003 |
| APPEAL NUMBER: | EA | 9 | of | 2007 |
| DATE DELIVERED: | 19 October 2007 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Bryant CJ, Faulks DCJ and Finn J |
| HEARING DATE: | 6 March 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 December 2006 |
| LOWER COURT MNC: | [2006] FMCAfam 706 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Millar |
| SOLICITOR FOR THE APPELLANT: | McGuinness Eley |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Farrar Gesini and Dunn |
Orders
That the appeal be dismissed.
That each party pay his or her own costs of and…
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- AGLC
- Taylor & Barker [2007] FamCA 1246
- Case
- [2007] FamCA 1246
- Decision Date
CaseChat Overview and Summary
The appeal raised several legal issues, including whether the Federal Magistrate erred in his application of the *Family Law Act 1975* (Cth), particularly concerning the 2006 amendments regarding shared parental responsibility. Specific grounds of appeal questioned whether the Magistrate improperly treated the relocation issue and the mother's reasons for relocation as separate matters, and whether he failed to adequately consider the practicability of the child spending "equal time" or "substantial and significant time" with each parent. Further grounds alleged that the Magistrate did not sufficiently consider the likely impact of the separation on the child's relationship with his father and paternal grandparents, nor did he adequately evaluate the strength of those relationships. The appeal also questioned whether the Magistrate gave excessive weight to the mother's relocation reasons and speculated on the consequences of her not being permitted to relocate without sufficient evidence.
The Court, comprising Bryant CJ, Faulks DCJ, and Finn J, was required to consider the paramountcy of the child's best interests under s 60CA of the *Family Law Act 1975* (Cth). The Court referenced the objects and principles outlined in s 60B and the specific matters to be considered under s 60CC when determining a child's best interests, including the benefit of a meaningful relationship with both parents, protection from harm, the child's views, the nature of relationships with significant persons, the ability of parents to facilitate contact, the likely effect of changes in circumstances, and the practicalities of maintaining contact. The majority of the Court found that the grounds of appeal lacked merit, concluding that the Federal Magistrate had not erred in his application of the relevant legislative provisions or in his evaluation of the evidence.
Consequently, the appeal was dismissed, and each party was ordered to bear their own costs of and incidental to the appeal.
Orders
Orders of the court
1.
That the appeal be dismissed.
2.
That each party pay his or her own costs of and incidental to the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As his Honour explained early in his reasons, he was required in making his decision in this case, to regard the child’s best interests as the paramount consideration by virtue of the provisions of s 60CA which are as follows:60CAChild’s best interests paramount consideration in making a parenting orderIn deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. As his Honour then went on to explain, the “backdrop” to the “exercise” which he had to perform is s 60B which, in his Honour’s words, “sets out the objects of the Act insofar as it deals with children and the principles underlying those objects”, and which is in the following terms:60B Objects of Part and principles underlying it(1) The objects of this Part are to ensure that the best interests of children are met by: (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests): (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). (3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and (ii) to develop a positive appreciation of that culture. As his Honour then further explained, s 60CC sets out matters to which he had to have regard in determining what was in the child’s best interests; the presently relevant sub-sections of that section are follows:60CCHow a court determines what is in a child’s best interestsDetermining child’s best interests(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3). 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. Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). Additional considerations (3) Additional considerations are: (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; (b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child); (c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; (f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; (h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right; (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; (j) any family violence involving the child or a member of the child's family; (k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person; (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (m) any other fact or circumstance that the court thinks is relevant. (4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents: (a) has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long‑term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child. (4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.