Tomas And Anor and Murray

Case [2011] FamCA 641

FAMILY COURT OF AUSTRALIA

TOMAS AND ANOR & MURRAY [2011] FamCA 641
FAMILY LAW – PARENTING – Where child was formally adopted in Western Samoa and adoption order was subsequently discharged – Best interests of the child - Whether there should be a change in residence – Where as a practical consequence parental responsibility will follow a change in residence. 
FAMILY LAW – JURISDICTION – Whether the Court has jurisdiction to determine the proceedings.
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60B, 60C, 60DA, 64B, 65C, 65D, 65DA, 65DAA, 65DAC, 65G, 67ZC, 69C, 69ZH
Family Law Rules 2004 (Cth) Rule 6.02
Evidence Act1995 (Cth) s 140
Makita v Sprowles (2001) 52 NSWLR 705
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FAFC 157
Minister for Immigration and Multicultural and Indigenous Affairs and B and Others [2004] HCA 20; 219 CLR 365; 206 ALR 130
Simon Lara and Irma Lara & Tom Marley and Elizabeth Sharp [2003] FamCA 1393; (2004) FLC 93-186
Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218; 106 ALR 385; 15 Fam LR 392
Re Mark: an application relating to parental responsibilities [2003] FamCA 822; (2003) FLC 93-173
Dudley and Chedi [2011] FamCA 502
Findlay and Anor & Punyawong [2011] FamCA 503
Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421; 42 Fam LR 369; 235 FLR 450
McCall & Clark (2009) FLC 93-405
Mazorski & Albright (2007) 37 Fam LR 518
G & C [2006] FamCA 994
Champness & Hanson (2009) FLC 93-407
Leighton & Carey [2010] FamCAFC 94
Briginshaw v Briginshaw (1938) 60 CLR 336
APPLICANTS: Ms Tomas and
Mr Tomas
RESPONDENT: Ms Murray
INTERVENER: Director-General, Department of Family and Community Services
FILE NUMBER: PAC 1187 of 2009
DATE DELIVERED: 17 August 2011
PLACE DELIVERED: Sydney
PLACE HEARD: Parramatta
JUDGMENT OF: Loughnan J
HEARING DATES: 11, 12, 13, 14 and 15 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr J. Weaver
SOLICITOR FOR THE APPLICANTS: Selective Lawyers
COUNSEL FOR THE RESPONDENT: Ms K. Conte Mills
SOLICITOR FOR THE RESPONDENT: Neagle Lawyers
COUNSEL FOR THE DIRECTOR-GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES: Ms V. Hartstein
SOLICITOR FOR THE DIRECTOR-GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES: NSW Crown Solicitor

Orders

  1. That Ms Murray have sole parental responsibility for S Tomas born in June 2007 (“the child”).

  2. That the child live with Ms Murray.

  3. That Ms Murray be permitted to relocate the residence of the child to Western Samoa and for that purpose she is authorised to take all steps and sign all documents necessary to procure a valid passport for the child and obtain such immigration status as may be necessary for the child to gain entry into Western Samoa and remain living there.

  4. That Ms and Mr Tomas take all necessary steps and sign all documents necessary to consent to the issue of a valid passport for the child, consent to the procurement of such immigration status for the…

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AGLC
Tomas And Anor and Murray [2011] FamCA 641
Case
[2011] FamCA 641
Decision Date

CaseChat Overview and Summary

In the matter of *Tomas and Anor and Murray*, Loughnan J of the Federal Circuit and Family Court of Australia determined issues concerning the parental responsibility and residence of a child, S, born in June 2007. The proceedings involved Ms Murray, the respondent, and Ms and Mr Tomas, the applicants, who sought to alter the existing arrangements for their child.

The central legal issues before the Court were whether Ms Murray should have sole parental responsibility for the child, whether the child should live with Ms Murray, and crucially, whether Ms Murray should be permitted to relocate the child to Western Samoa. The Court was also required to make consequential orders to facilitate this relocation, including the issuance of a passport and necessary immigration status for the child.

Loughnan J reasoned that it was in the child's best interests for Ms Murray to have sole parental responsibility and for the child to live with her. The Court further found that permitting the relocation to Western Samoa was appropriate, authorising Ms Murray to take all necessary steps to procure a passport and immigration status for the child. To give effect to these orders, the Court mandated that both parties cooperate in signing necessary documents and facilitating the child's delivery to Child Dispute Services if required. The Court also established specific communication arrangements between the child and the parents and noted Ms Murray's offer to facilitate future time spent with the child should either parent travel to Samoa or the child travel to Australia.

Orders

Orders of the court

1.

That Ms Murray have sole parental responsibility for S Tomas born in June 2007 (“the child”).

2.

That the child live with Ms Murray.

3.

That Ms Murray be permitted to relocate the residence of the child to Western Samoa and for that purpose she is authorised to take all steps and sign all documents necessary to procure a valid passport for the child and obtain such immigration status as may be necessary for the child to gain entry into Western Samoa and remain living there.

4.

That Ms and Mr Tomas take all necessary steps and sign all documents necessary to consent to the issue of a valid passport for the child, consent to the procurement of such immigration status for the child as may be necessary for the child to gain entry into Western Samoa and remain living there and remove the child from the watch list at points of international departure from Australia.

5.

In the event that Ms Tomas and / or Mr Tomas fail to comply with any or all of their obligations under Order 4 within 14 days of the written request by the respondent or her legal representative, a Registrar of this Court shall be authorised to sign any necessary documents referred to in this Order upon the filing of an affidavit by Ms Murray or her legal representative deposing to the request made of the applicant in writing and his/her failure to comply in the time stipulated.

6.

In order to give effect to these Orders, Ms and Mr Tomas shall cause the child to be delivered to the Manager Child Dispute Services (CDS) located at 1-3 George St, Parramatta at a time and date agreed between the parties.

7.

Ms and Mr Tomas may communicate with S by telephone on 2 occasions per week, with Ms Murray to facilitate the telephone call on a Monday evening, Western Samoan time and Ms and Mr Tomas to facilitate the telephone call on Thursday, Australian time.

8.

Leave is granted to any party to restore the proceedings to the list before Justice Loughnan in relation to the form of these orders and any necessary machinery orders on giving at least 24 hours notice to each other and to the Court.

Notation

(A) The Court notes that Ms Murray has offered and agrees to facilitate the child spending time with Ms and or Mr Tomas in the event that either of them travel to Samoa or in the event that the child travels to Australia.

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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