Tiegs & Tiegs - [2009] FMCAfam 1322

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TIEGS & TIEGS

[2009] FMCAfam 1322

FAMILY LAW – Parenting – interim hearing – best interests of children – relocation.

Family Law Act 1975, Part VII, ss.60CA, 60B, 60B(1)(a), 60CC, 60CC(1), 60CC(2)(b), 60CC(3)(f), (g), (h), (i) (j),(i), (k), (l), (m) 60CC(4), 61DA, 65DAA(1), (2), (4)

AMS v AIF (1999) 199 CLR 160
Goode v Goode (2007) 36 Fam LR 422
McCall v Clarke (2009) 41 Fam LR 483

Mazorski v Albright (2007) 37 Fam LR 518

Moose v Moose (2008) FLC ¶93-375
Morgan v Miles (2008) 38 Fam LR 275
MRR v GR [2009] HCA Trans 316
Mulvany v Lane (2009) 41 Fam LR 418
Sampson v Hartnett (No.10) (2008) 38 Fam LR 315
SPS & PLS (2008) FLC ¶93-363

R. Chisholm, “Recent Cases: To what extent can the court make orders that inhibit a parent’s right to relocate?” (2008) 22 Australian Journal of Family Law 154

Applicant:

MS TIEGS

Respondent:

MR TIEGS

File Number:

CAC 1244 of 2009

Judgment of:

Neville FM

Hearing date:

26 November 2009

Date of Last Submission:

26 November 2009

Delivered at:

Canberra

Delivered on:

18 December 2009

REPRESENTATION

Advocate for the Applicant:

Mr Howard
as agent for Farrell Lusher, Solicitors
Wagga Wagga

Advocate for the Respondent:

Mr Moore
as agent for Friedlieb Byrne, Solicitors
Wagga Wagga

ORDERS

That the parties have equal shared parental responsibility for the children [X], born [in] 2004 and [Y], born [in] 2006 (“the children”).
That the children live in Wagga Wagga.
That the Mother establish the children’s residence in Wagga Wagga.
That the children live in a week about arrangement with the Mother and the Father with the timetable to be agreed between the parties.
That changeover at the commencement and conclusion of each week take place in a public place and or with the assistance of an independent third party as agreed between the parties.
That the children may communicate with the parent with whom they are not otherwise living at all reasonable times.
That the matter be adjourned to 19 May 2010 at 10:30am in Wagga Wagga.

IT IS NOTED that publication of this judgment under the pseudonym Tiegs & Tiegs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 1244 of 2009

MS TIEGS

Applicant

And

MR TIEGS

Respondent

REASONS FOR JUDGMENT

A. Introduction

This parenting case involves two young children – [X], who is five and who commences school next year, and [Y], who is three – who, since January 2009, have lived in a shared-care (week-about) arrangement with both parents.
For reasons explained later, Ms Tiegs (the Applicant) has been living on a farm outside [G] since approximately January this year. By profession she is [employed in the Education Industry]. Mr Tiegs, who has flexible working hours as a [tradesman], lives in Wagga Wagga.
Although Mr Tiegs seeks, as an alternative order that, in the event that Ms Tiegs does not return to Wagga Wagga, the children…

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 Tiegs & Tiegs

Details

AGLC: Tiegs & Tiegs [2009] FMCAfam 1322
Case: [2009] FMCAfam 1322
Decision Date: 18 December 2009

CaseChat Overview and Summary

The case of Tiegs and Tiegs involved the parents of two children, born in 2004 and 2006, who were in dispute over parenting arrangements. The Family Court of Australia was tasked with determining these arrangements, with a particular focus on the children’s residence, their living arrangements, and the method of changeover between parents. The court was also required to decide on the children's communication with the non-resident parent and the broader context of shared parental responsibility.

The primary legal issues before the court were the determination of the children's residence, the formulation of a week-about living arrangement between the parents, and the method of changeover to ensure the children’s safety and well-being. Additionally, the court needed to address the communication rights of the children with the non-resident parent. The court's decision had to balance the best interests of the children with the rights and responsibilities of both parents.

In its judgment, the court determined that the children should reside in Wagga Wagga, with each parent having equal shared parental responsibility. The court established a week-about living arrangement between the parents, with the specific timetable to be agreed upon by the parties. Changeover at the beginning and end of each week was to occur in a public place or with the assistance of an independent third party. The children were granted the right to communicate with the parent with whom they were not living at all reasonable times. The matter was adjourned for further review on 19 May 2010.

Orders

Orders of the court

That the parties have equal shared parental responsibility for the children [X], born [in] 2004 and [Y], born [in] 2006 (“the children”).

That the children live in Wagga Wagga.

That the Mother establish the children’s residence in Wagga Wagga.

That the children live in a week about arrangement with the Mother and the Father with the timetable to be agreed between the parties.

That changeover at the commencement and conclusion of each week take place in a public place and or with the assistance of an independent third party as agreed between the parties.

That the children may communicate with the parent with whom they are not otherwise living at all reasonable times.

That the matter be adjourned to 19 May 2010 at 10:30am in Wagga Wagga.

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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