Vaughton and Randle - [2014] FamCA 147

FAMILY COURT OF AUSTRALIA

VAUGHTON & RANDLE

[2014] FamCA 147

FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time – mother relocated to Tasmania without notice – child lived with mother in Tasmania and travelled back to Adelaide on alternate weekends to spend time with father – history of contraventions – allegations of family violence not substantiated – mother reluctant to foster meaningful relationship between father and child – best interests of the child – recommendations of family consultant – mother and child to return to Adelaide – child live with mother and spend time with father.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 69ZN, 69ZT, 70NFB
Evidence Act 1995 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
M & M (1988) 166 CLR 69
Maluka & Maluka (2011) FLC 93-464
Maluka & Maluka [2012] FamCA 373
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McShane & Tanner (No 2) [2011] FMCAfam 508

APPLICANT:

Ms Randle

RESPONDENT:

Mr Vaughton

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

FILE NUMBER:

ADC

3046

2010

DATE DELIVERED:

13 March 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

14 & 15 November 2013, 6 & 20 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dillon

SOLICITOR FOR THE APPLICANT:

Adelaide Legal Solutions

COUNSEL FOR THE RESPONDENT:

Ms Dickson

SOLICITOR FOR THE RESPONDENT:

Adey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fuda

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

That all previous parenting orders be discharged.
That the mother and the father do have equal shared parental responsibility in respect of the child R born … 2008.
That the mother do all things as shall be necessary to cause the return of the said child to reside permanently in the metropolitan area of Adelaide in the State of South Australia on or before 4 July 2014.
That the child shall live with the mother.
That the child shall spend time with the father as follows:-
(a)       From 10am Saturday 12 April 2014 to 5pm on Saturday 19 April 2014;
(b)       From 10am Saturday 17 May 2014 to 5pm on Sunday 18 May 2014;
(c)       From 10am Saturday 5 July 2014 to 6pm Saturday 12 July 2014;
(d)During school term, each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Tuesday;
(e)As and from the end of Term 3 2014 school holidays, for the first half of each of the short end of term holidays, with the last day of the term to be the first day of the holidays and the Sunday immediately prior to the commencement of the next term shall be the last day of the school holidays.
(f)For the 2013/2014, 2014/2015 and 2015/2016 Christmas holiday periods on a week about basis with the father to have the first week in 2014/2015 and each alternate years thereafter…

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 Vaughton and Randle

Details

AGLC: Vaughton and Randle [2014] FamCA 147
Case: [2014] FamCA 147
Decision Date

CaseChat Overview and Summary

In Vaughton & Randle [2014] FamCA 147, the Family Court of Australia considered parenting orders concerning a child, R, born in 2008. The dispute arose after the mother relocated with the child to Tasmania without notifying the father. The child was living with the mother in Tasmania and travelling to Adelaide on alternate weekends to spend time with the father. The proceedings involved allegations of family violence, which were not substantiated, and concerns about the mother's reluctance to foster a meaningful relationship between the child and the father.

The court was required to determine the best interests of the child, specifically with whom the child should live and spend time. This involved assessing the impact of the mother's relocation, the history of contraventions of previous orders, and the need to promote a positive relationship between the child and both parents. The court also considered the recommendations of a family consultant in reaching its determination.

Justice Berman applied the principles of the *Family Law Act 1975* (Cth), particularly those relating to the best interests of the child, including the importance of the child having a meaningful relationship with both parents and the need to protect the child from harm. The court found that the mother's relocation to Tasmania was not in the child's best interests and that it was necessary for the child to return to Adelaide to facilitate a more balanced relationship with both parents. The court also considered the *Briginshaw v Briginshaw* standard in relation to the unsubstantiated allegations of family violence.

The court ordered the discharge of all previous parenting orders. It was ordered that the mother and father have equal shared parental responsibility for the child. Crucially, the mother was ordered to facilitate the child's permanent return to reside in Adelaide by 4 July 2014. The child was ordered to live with the mother, and detailed provisions were made for the child to spend time with the father, including during school terms, holidays, and on specific occasions such as birthdays and Christmas. The orders also included injunctions restraining the parties from altering the child's residential address without notice, denigrating the other parent, and requiring them to facilitate communication and information sharing regarding the child's welfare and education.

Orders