Walpole and Zepps - [2007] FMCAfam 884

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALPOLE & ZEPPS

[2007] FMCAfam 884

FAMILY LAW – Parenting – relocation – mother seeks to move to Darwin with the child – effect on child’s meaningful relationship with father.

Family Law Act 1975 (Cth) ss.60B, 60CC(2) (3) and (4)

A and A: Relocation Approach (2000) FLC 93-035
AMS v AIF (1999) 199 CLR 160
Godfrey & Sanders [2007] FamCA 102
Clapton & Springer [2007] FamCA 1184

B & B [2006] FamCA 1207
Taylor & Barker [2007] FamCA 1246

Applicant:

MS WALPOLE

Respondent:

MR ZEPPS

File number:

PAM 4038 of 2006

Judgment of:

Henderson FM

Hearing dates:

10 & 11 September 2007

Date of last submission:

11 September 2007

Delivered at:

Parramatta

Delivered on:

29 October 2007

REPRESENTATION

Counsel for the Applicant:

Ms Winfield

Solicitors for the Applicant:

White Barnes

Counsel for the Respondent:

Mr Schroder

Solicitors for the Respondent:

Harman & Co

ORDERS

The mother be permitted to relocate with the child, [D] born in 2001, to Darwin two weeks prior to the commencement of the Darwin school term and thereafter the child live with the mother.
The parents have equal shared parental responsibility for the child
The child spend time with the father as follows:
(a)For all school holidays except for two weeks in the Christmas school holidays:
(i)School holiday periods during school term to be calculated from and commence the first Saturday after school ceases and to end the Friday before School resumes;
(ii)School holiday periods during Christmas in odd numbered years to be calculated from and commence the first Saturday after school ceases for a period of 28 days and to end on the 28th day;
(iii)School holiday periods during Christmas in even numbered years to be calculated from and commence the 15^th day after school breaks up and end the Friday before School resumes;
(b)At all times the father is in Darwin by the father giving the mother 21 days notification.
The parents to share the cost of air travel for the child to and from Darwin each calendar year with the mother to pay for the first two return air tickets and the father the father the remaining two return air tickets.
The parents to notify each other 14 days prior to school holidays commencing of the time and flight number of the child’s return flight from Darwin to Sydney and Sydney to Darwin.
The child to communicate with the father by telephone, email on six occasions each week and the mother to facilitate the child’s communication with father in all respects.
The mother to facilitate the child speaking to his maternal grandmother on no less than one occasion each week.
The mother to forthwith notify the father of the child’s residential address and telephone number in Darwin.
The mother to forthwith notify the father of the school the child is to attend in Darwin in 2008 and to give all consents necessary and sign all authorities with the school to ensure the father receives copies of…

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 Walpole and Zepps

Details

AGLC: Walpole and Zepps [2007] FMCAfam 884
Case: [2007] FMCAfam 884
Decision Date: 29 October 2007

CaseChat Overview and Summary

The case before the Family Court of Australia, identified as Walpole and Zepps, involved a dispute between the parents of a child named [D], born in 2001, regarding the relocation of the child from Sydney to Darwin. The mother sought permission to move with the child, while the father contested the move and sought specific arrangements for the child's living situation, contact, and communication. The court was required to determine whether the child should relocate with the mother, how parental responsibilities should be shared, and the specifics of the child's contact and communication with both parents.

The court addressed several legal issues, including the best interests of the child as the paramount consideration under the Family Law Act 1975. The court considered the mother's application to relocate, the implications of relocation on the child's welfare, and the need to ensure meaningful and regular contact between the child and both parents. Additionally, the court examined the parents' ability to cooperate and make arrangements that facilitate the child's relationship with both parents.

In its decision, the court permitted the mother to relocate with the child to Darwin two weeks before the school term commenced, recognising the mother's right to move while ensuring the child's welfare. The court assigned equal shared parental responsibility to both parents, emphasising their joint obligation to make arrangements for the child's welfare. The court detailed specific arrangements for the child's time with the father during school holidays, including precise calculation of holiday periods and notification requirements. Furthermore, the court mandated shared costs for air travel, regular communication between the child and both parents, and the facilitation of the child's contact with extended family and health professionals.

The court issued detailed orders to ensure the child's well-being and maintain both parents' involvement in the child's life. These orders included the mother's notification of the child's residential and school details to the father, the parents' obligation to complete a parenting course, and specific guidelines for communication and contact between the child and both parents.

Orders

Orders of the court

The mother be permitted to relocate with the child, [D] born in 2001, to Darwin two weeks prior to the commencement of the Darwin school term and thereafter the child live with the mother.

The parents have equal shared parental responsibility for the child

The child spend time with the father as follows:

(a) For all school holidays except for two weeks in the Christmas school holidays:

(i) School holiday periods during school term to be calculated from and commence the first Saturday after school ceases and to end the Friday before School resumes;

(ii) School holiday periods during Christmas in odd numbered years to be calculated from and commence the first Saturday after school ceases for a period of 28 days and to end on the 28th day;

(iii) School holiday periods during Christmas in even numbered years to be calculated from and commence the 15th day after school breaks up and end the Friday before School resumes;

(b) At all times the father is in Darwin by the father giving the mother 21 days notification.

The parents to share the cost of air travel for the child to and from Darwin each calendar year with the mother to pay for the first two return air tickets and the father the father the remaining two return air tickets.

The parents to notify each other 14 days prior to school holidays commencing of the time and flight number of the child’s return flight from Darwin to Sydney and Sydney to Darwin.

The child to communicate with the father by telephone, email on six occasions each week and the mother to facilitate the child’s communication with father in all respects.

The mother to facilitate the child speaking to his maternal grandmother on no less than one occasion each week.

The mother to forthwith notify the father of the child’s residential address and telephone number in Darwin.

The mother to forthwith notify the father of the school the child is to attend in Darwin in 2008 and to give all consents necessary and sign all authorities with the school to ensure the father receives copies of the child’s school reports and notification of school events with any cost associated in complying with this order to be borne by the mother.

10.

The mother forthwith notify the father of any serious injury to the child, hospitalisation or ongoing medical treatment including the name and contact details of any treating health professional.

11.

The father is permitted to contact any of the child’s treating health professional at any time and the mother is to facilitate this order being carried out.

12.

Parents to undergo a parenting after separation course to be completed within the time determined by the service provider.

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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