Vogel and Abell - [2010] FMCAfam 1189

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VOGEL & ABELL

[2010] FMCAfam 1189

FAMILY LAW – Children – parental responsibility – with whom a child lives – international relocation.

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG , 61DA, 65DAA, 65Y, 69ZW
Australian Citizenship Act 2007

Goode & Goode (2006) FLC 93-286

Marvel [2010] FamCAFC 101

U v U (2002) 211 CLR 238
Oakley & Cooper [2009] FamCAFC 133
Dylan & Dylan [2007] FamCA 842
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
S & Baloya & Others CCT29/99 [1999] ZACC 19
Aguilera & Reid 2006 CanLII 6196
DCR v TMR 2007 BCSC 1127 (CanLII)
Jordan & Jordan 2001 BCSC 1058 (CanLII)
Robinson & Filyk 1996 CanLII 3310 (BCCA)
Ness & Ness 1999 BCCA 51 (CanLII)
Universal Declaration of Human Rights 1948
Declaration on the Elimination of Violence against Women
Convention on the Elimination of Discrimination Against Women

“Post Separation Parenting Arrangements and Developmental Mental Outcomes for Infants and Children” Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wells, Caroline Long May 2010

“The difference is night and day” Bruce Smythe 2003

Applicant:

MS VOGEL

Respondent:

MR ABELL

File Number:

PAC 3321 of 2010

Judgment of:

Harman FM

Hearing date:

20 September 2010

Date of Last Submission:

20 September, 2010

Delivered at:

Parramatta

Delivered on:

20 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Batey

Solicitors for the Applicant:

Watts McCray Lawyers

Counsel for the Respondent:

Mr Anderson

Solicitors for the Respondent:

Etheringtons Solicitors

ORDERS

That the parents have equal shared parental responsibility for the child [X] born [in] 2009 other than decisions in respect of:
(i)Education;
(ii)Country of residence.
which shall be subject of consultation between the parties but in the event of disagreement shall be in accordance with the mother’s decision.

That [X] shall live with his father, Mr Abell, and subject to order 1 the father shall be responsible for [X]’s day to day care and welfare at the following times:

(i)from the date of these orders, until the mother and [X] commences residing outside Australia, on two occasions each week being:

a) Each Wednesday from 4pm to 6pm;
b) Each Sunday from 9am to 11am.

(ii)Commencing from when [X] attains the age of 5 or commences primary school whichever is the later, for four periods of 7 days from 10am on day 1 to 4pm on day 7, if possible in school holiday periods, or if not in school holiday periods then conditional upon [X] attending school.
(iii)At such other times and in such other locations as the parties may agree in writing,

(and for periods between Ms Vogel’s and [X]’s departure from Australia and the commencement of Order 2(ii) in accordance with order 9 hereof).

That the mother, Ms Vogel, is to do all things necessary to maintain an internet connection in the residence in which [X] resides, and to facilitate “Skype” or such other face to face connection to permit the father to have internet/telephone communication between [X] and his…

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 Vogel and Abell

Details

AGLC: Vogel and Abell [2010] FMCAfam 1189
Case: [2010] FMCAfam 1189
Decision Date

CaseChat Overview and Summary

This case involved proceedings for parenting orders concerning a young British citizen, [X], born in 2009. The proceedings were between the child's parents, Ms Vogel and Mr Abell, both British citizens. The case was heard by Federal Magistrate Harman at Parramatta. The primary issue was the nature and structure of how [X]'s relationship with his father would continue until his fifth birthday or the commencement of school, whichever occurs last. The parties had reached substantial agreement on other issues, including the relocation of [X] and his mother to Singapore. The court considered the relevance of domestic violence allegations, the limited involvement of Mr Abell in the child's care, and the importance of establishing a secure attachment between [X] and his father. Magistrate Harman emphasised the need for a cautious approach to avoid disrupting [X]'s secure attachment with his mother and to foster a meaningful relationship with his father. The court made orders for supervised contact initially, progressing to unsupervised contact as [X] developed.

Orders