FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALTHORPE & VASS | [2018] FCCA 3583 |
| Catchwords: FAMILY LAW – Parenting – application by Mother to relocate from Australian Capital Territory to Sydney to be near her sister (Mother’s first preference was to relocate to Perth to be near her Mother) – considerations relevant to best interests of the child moving with the Mother or remaining in the ACT where the Mother feels isolated and somewhat unsupported which was also the case during the marriage with the Father who required the Mother to adjust her life to accommodate the Father’s business and other interests – application granted. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(3)(a) – (l), 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Sigley v Evor (2011) 44 Fam LR 439 Starr & Duggan [2009] FamCAFC 115 Vontek v Vontek [2017] FamCAFC 28 Wiley & Wiley [2008] FamCAFC 153 |
| Applicant: | MS WALTHORPE |
| Respondent: | MR VASS |
| File Number: | CAC 769 of 2016 |
| Judgment of: | Judge Neville |
| Hearing date: | 29 March 2018 |
| Date of Last Submission: | 26 April 2018 |
| Delivered at: | Canberra |
| Delivered on: | 7 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stagg |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
| Solicitors for the Independent Children's Lawyer: | Yeend & Associates |
ORDERS
The Applicant Mother and the children, [X] (born: 2008) and [Y] (born: 2011) (“the children”), be permitted to relocate to Sydney, New South Wales.
Thereafter, absent any Court Order or the consent of the Father, the children’s residence is not to be moved outside of Sydney, New South Wales.
The parties have equal shared parental responsibility for the children.
The parents shall communicate with each other using the ‘talking parents’ app or similar device. For more urgent communication they shall send SMS or emails to each other.
Each of the parents shall advise the other of any issues affecting the children’s health…
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- WALTHORPE & VASS [2018] FCCA 3583
- Case
- [2018] FCCA 3583
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether permitting the mother to relocate to Sydney was in the best interests of the children, considering the mother's feelings of isolation and lack of support in the ACT, which mirrored her experience during the marriage where she had to adjust her life to accommodate the father's interests. The court was required to weigh these factors against the potential impact of the move on the children's relationship with their father and their overall well-being.
Judge Neville granted the mother's application to relocate the children to Sydney. The court reasoned that the mother's feelings of isolation and lack of support in the ACT were significant factors impacting her ability to parent effectively. The court also considered the father's ability to maintain a meaningful relationship with the children despite the relocation, outlining specific arrangements for time with the father, communication, and holiday arrangements. The orders also included provisions for equal shared parental responsibility, communication protocols, and prohibitions against denigration of either parent to the children.
Orders
Orders of the court
1.
The Applicant Mother and the children, [X] (born: 2008) and [Y] (born: 2011) (“the children”), be permitted to relocate to Sydney, New South Wales.
2.
Thereafter, absent any Court Order or the consent of the Father, the children’s residence is not to be moved outside of Sydney, New South Wales.
3.
The parties have equal shared parental responsibility for the children.
4.
The parents shall communicate with each other using the ‘talking parents’ app or similar device. For more urgent communication they shall send SMS or emails to each other.
5.
Each of the parents shall advise the other of any issues affecting the children’s health or education as soon as practicable.
6.
Each of the parents is responsible for organizing care (e.g. after school care or school holiday programs) for the children during his or her time with them if he or she has work commitments while the children are in their care. He or she must give the first option of caring for the children to the other parent but that parent is not obliged to provide that care although he or she must advise the first parent within 3 days of the request.
7.
The children live with the Mother and subject to any other agreement in writing between the parties, they shall spend time with their Father as follows:
(a) Every second weekend with the Father (the parties are to finalise the pick-up and drop-off times and changeover, but in the absence of agreement between the parties in writing, changeover is to occur at Suburb A, New South Wales);
(b) Half of each school holiday period;
(c) The children shall be at liberty to contact either parent at any reasonable time (which shall be facilitated by the resident parent);
(d) The Father and the children shall telephone (or Skype) each other as agreed, and failing agreement, no less than twice per week (with the times to be agreed between the parties; in the absence of agreement, those times shall be at 6pm each Tuesday and Thursday); and
(e) Whichever parent has the care of the children at the relevant time shall ensure the children have a video call with the other parent at 6:00pm on:
(i) Each child’s birthday;
(ii) The relevant parent’s birthday;
(iii) Christmas Day at the time the absent parent is likely to have a family gathering;
(iv) Easter Sunday (both the Australian and (nationality omitted) days);
(v) Mother’s day; and
(vi) Father’s day.
8.
Either parent shall be at liberty to take the children on holidays whether domestic or international during the time the children are due to be with them, and for additional time if agreed between the parties in writing.
9.
The parent who proposes to travel shall provide the other parent with a detailed itinerary at least 3 months in advance, unless otherwise agreed.
10.
Each of the parents shall do all things necessary to enable the travelling parent to obtain passports for the children.
11.
Neither parent, nor their agents and servants, shall denigrate the other parent to the children, in front of the children or within the children’s hearing.
12.
The parties are restrained from denigrating the other parent, or the other parent’s partner and family, to the children, in front of the children or within the children’s hearing, and are to use their best endeavours to ensure that no one else does so.
13.
The parties are restrained from discussing these proceedings with the children, in front of the children or within the children’s hearing, and are to use their best endeavours to ensure that no one else does.
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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