WARDLEY & ULSTONE - [2012] FMCAfam 200

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WARDLEY & ULSTONE

[2012] FMCAfam 200

FAMILY LAW – Children – parenting orders – relocation – where mother seeks to relocate child’s residence to New Zealand – girl aged 9 years and 4 months.

FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – where parties had agreed to a shared parenting arrangement that had been in place since separation.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CB, 60CC, 60CD, 61DA, 65DAA

Mallahan & Mallahan [2010] FamCA 631
Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343
MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424

Applicant:

MR WARDLEY

Respondent:

MS ULSTONE

File Number:

SYC 4634 of 2010

Judgment of:

Scarlett FM

Hearing dates:

23-25 August, 12 December 2011

Date of Last Submission:

25 August 2011

Delivered at:

Sydney

Delivered on:

12 March 2012

REPRESENTATION

Counsel for the Applicant:

Mr Schonell SC

Solicitors for the Applicant:

Cameron Gillingham Boyd

Counsel for the Respondent:

Ms Rees SC

Solicitors for the Respondent:

Clayhills

ORDERS

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2002.
Orders 2 and 3 sought in the Amended Response filed on 16 March 2011 are dismissed.
The Respondent Mother is restrained from relocating the residence of the child X born (omitted) 2002 outside the Commonwealth of Australia until the child completes her primary school education.
In the event that the Mother continues to reside in Australia, the child X is to spend equal time with each of the Applicant Father and the Respondent Mother on a week about basis until such time as the Mother leaves Australia to reside permanently in New Zealand.
IN THE EVENT THAT THE RESPONDENT MOTHER leaves Australia to reside permanently in New Zealand then the following Orders shall apply as and from the date of the Mother’s departure from Australia.
The child X is to live with the Applicant Father.
The child X is to spend time with the Respondent Mother as follows:
(a)For the entirety of the school holiday period at the end of Term 1 in each year from the first Saturday after school finishes until the Saturday before school returns;
(b)For the first half of the school holiday periods at the conclusion of Term 2 and Term 3 in each year, commencing from the first Saturday after school finishes until the Sunday eight days later;
(c)During the Christmas/January school holiday periods for the first half of the school holidays in even numbered years commencing in 2012 and for the second half of the school holidays in odd numbered years commencing in 2013; and
(d)At other times as the parties shall agree.
The Father shall facilitate X’s communication with the Mother at least twice weekly by means of telephone, email or Skype.
The Father must ensure that X communicates with the Mother by telephone…

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 WARDLEY & ULSTONE

Details

AGLC: WARDLEY & ULSTONE [2012] FMCAfam 200
Case: [2012] FMCAfam 200
Decision Date: 12 March 2012

CaseChat Overview and Summary

This case involved a dispute between the parents of a child born in 2002, regarding the mother’s application to relocate to New Zealand with the child. The matter was heard in the Family Court of Australia. The father opposed the relocation, asserting that it would be detrimental to the child’s welfare, and sought a range of orders to manage the child’s time and communication with the mother if relocation were to occur.

The court was required to determine whether the relocation was in the best interests of the child, and if so, what arrangements should be put in place to safeguard the child’s welfare. The court had to balance the mother’s right to relocate against the child’s need for stability and continuity in her upbringing. The court also needed to consider the existing shared parenting arrangement that had been in place since the parents separated.

The court concluded that while relocation was not in the child’s best interests at that time, it recognised the mother’s right to relocate in the future. The court imposed conditions on the mother’s relocation, including a prohibition on moving until the child completed primary school, and detailed arrangements for the child’s time with each parent if the mother relocated. These arrangements included a week-about schedule while the mother remained in Australia, and specified periods of contact if the mother relocated to New Zealand. The court also ordered that the father must facilitate communication between the child and the mother, and outlined responsibilities for travel, education, and health matters.

The final orders of the court included a declaration of equal shared parental responsibility, a prohibition on the mother relocating until the child finishes primary school, detailed time-sharing arrangements, communication protocols, and provisions for the child’s travel, education, and health. Each party was also required to promptly notify the other of any illness or injury to the child, and to share the costs of the child’s travel to and from New Zealand.

Orders

Orders of the court

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2002.

Orders 2 and 3 sought in the Amended Response filed on 16 March 2011 are dismissed.

The Respondent Mother is restrained from relocating the residence of the child X born (omitted) 2002 outside the Commonwealth of Australia until the child completes her primary school education.

In the event that the Mother continues to reside in Australia, the child X is to spend equal time with each of the Applicant Father and the Respondent Mother on a week about basis until such time as the Mother leaves Australia to reside permanently in New Zealand.

IN THE EVENT THAT THE RESPONDENT MOTHER leaves Australia to reside permanently in New Zealand then the following Orders shall apply as and from the date of the Mother’s departure from Australia.

The child X is to live with the Applicant Father.

The child X is to spend time with the Respondent Mother as follows:

(a) For the entirety of the school holiday period at the end of Term 1 in each year from the first Saturday after school finishes until the Saturday before school returns;

(b) For the first half of the school holiday periods at the conclusion of Term 2 and Term 3 in each year, commencing from the first Saturday after school finishes until the Sunday eight days later;

(c) During the Christmas/January school holiday periods for the first half of the school holidays in even numbered years commencing in 2012 and for the second half of the school holidays in odd numbered years commencing in 2013; and

(d) At other times as the parties shall agree.

The Father shall facilitate X’s communication with the Mother at least twice weekly by means of telephone, email or Skype.

The Father must ensure that X communicates with the Mother by telephone or Skype on the following occasions:

(a) Mother’s Day; and

(b) The Mother’s birthday.

10.

In the event that that the Applicant Father wishes to take X out of Australia for the purpose of a holiday, he is to provide the Respondent Mother with at least two (2) months’ written or email notice prior to the date of the proposed departure of the proposed departure and return dates and fourteen (14) days prior to the date of departure provide the Mother with a travel itinerary including flight times, accommodation and contact details.

11.

Each party must promptly advise the other in the event that X suffers any illness or injury.

12.

The Father must provide to the Mother copies of all X’s school reports and school photos within seven (7) days of the receipt of each report and school photos.

13.

The Father is to hold X's New Zealand and United Kingdom passports except at times required by the Mother for any international travel by X with her mother.

14.

For the purpose of X’s travel to and from New Zealand:

(a) The Father shall make all necessary airline bookings and advise the Mother at least fourteen (14) days prior to the date of the child’s departure for New Zealand; and

(b) The parties shall each pay one half of the costs of the child’s travel.

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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