Wilkins and Coates - [2018] FamCA 1098

FAMILY COURT OF AUSTRALIA

WILKINS & COATES

[2018] FamCA 1098

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where mother seeks to relocate with the child – Where father opposes relocation – Where the mother’s emotional and financial circumstances will improve if relocation is permitted – Whether mother’s parenting capacity will improve if relocation permitted – Whether the relationship between the father and the child will deteriorate if relocation is permitted – Findings that relocation is in the child’s best interest – Relocation permitted – Where order for equal shared parental responsibility is in the child’s best interest – Where orders are made for the child to live with the mother and spend significant and substantial time with the father if he is able to do so.

Family Law Act 1975 (Cth) ss 60B, 60CC

A v A: Relocation Approach (2000) FLC 93-035

APPLICANT:

Ms Wilkins

RESPONDENT:

Mr Coates

FILE NUMBER:

MLC

5021

2017

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

30 & 31 October 2018, 1 & 2 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Swann

SOLICITOR FOR THE APPLICANT:

RNG Lawyers, Lilydale

COUNSEL FOR THE RESPONDENT:

Mr Sansom SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

BY DETERMINATION all previous parenting orders made in respect of X born … 2014 (‘the child’) shall be and are discharged from the date of this order.
BY CONSENT Ms Wilkins (‘the mother’) and Mr Coates (‘the father’) shall have equal shared parental responsibility for, and shall make joint decisions about, major long terms issues affecting the child, including but not limited to decisions about the child’s education, religious and cultural upbringing, health and extra-curricular and sporting activities.

BY DETERMINATION

The child shall primarily live with the mother.
The mother is permitted to relocate the residence of the child from Melbourne Australia to City B New Zealand on or after 31 January 2019.
The child shall spend time with the father as follows:-
5.1For the period December 2018 up to 21 December 2018:-
5.1.1In Week 1, from the conclusion of school on Friday, but in the event that the child is not at school then from 9.00am until the commencement of school on Monday, but if the child is not at school then until 6.00pm;
5.1.2In Week 2, from the conclusion of school on Wednesday, but in the event that the child is not at school then from 3.00pm until the commencement of school on Friday, but if the child is not at school then until 9.00am; and
5.1.3Such weeks to be consistent in terms of the alternate weekend schedule presently in place;
5.2From the commencement of school term 2019 and onwards:-
5.2.1for one block period every 2 months of 4 days and 3 nights, commencing Friday morning and concluding Monday afternoon with the father to notify the mother no less than 14 days in advance of changeover times, to coincide with his airline flight times;
5.2.2For 3 block…

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 Wilkins and Coates

Details

AGLC: Wilkins and Coates [2018] FamCA 1098
Case: [2018] FamCA 1098
Decision Date: 14 December 2018

CaseChat Overview and Summary

This matter concerned parenting orders made by Benjamin J in the Federal Circuit and Family Court of Australia. The parties, Ms Wilkins (the mother) and Mr Coates (the father), sought to discharge previous orders and establish new arrangements for their child, X. The dispute centred on the child's primary residence, the mother's proposed relocation to New Zealand, and the time the child would spend with each parent.

The court was required to determine the best interests of the child, X, in light of the proposed relocation and the parents' proposed parenting arrangements. Specifically, the court had to consider whether to discharge existing orders, whether to grant the mother permission to relocate the child to New Zealand, and what specific orders regarding equal shared parental responsibility, primary residence, and time spent with each parent were appropriate.

The orders made by the court reflect a consent agreement between the parties, with Benjamin J making determinations based on that consent. The court discharged all previous parenting orders and established equal shared parental responsibility for major long-term issues. The child was ordered to primarily live with the mother, who was permitted to relocate the child to New Zealand from January 2019. Detailed provisions were made for the child's time with the father, including specific arrangements for school terms, school holidays, and Christmas/summer holidays, with provisions for travel and communication. The court also made orders regarding overseas travel, notification of addresses, medical information, and communication with schools and sporting bodies, and stipulated that the child's primary residence could not be moved from the greater City B area without agreement or further court order.

Orders

Orders of the court

BY DETERMINATION all previous parenting orders made in respect of X born … 2014 (‘the child’) shall be and are discharged from the date of this order.

BY CONSENT Ms Wilkins (‘the mother’) and Mr Coates (‘the father’) shall have equal shared parental responsibility for, and shall make joint decisions about, major long terms issues affecting the child, including but not limited to decisions about the child’s education, religious and cultural upbringing, health and extra-curricular and sporting activities.

BY DETERMINATION

The child shall primarily live with the mother.

The mother is permitted to relocate the residence of the child from Melbourne Australia to City B New Zealand on or after 31 January 2019.

The child shall spend time with the father as follows:-

5.1 For the period December 2018 up to 21 December 2018:-

5.1.1 In Week 1, from the conclusion of school on Friday, but in the event that the child is not at school then from 9.00am until the commencement of school on Monday, but if the child is not at school then until 6.00pm;

5.1.2 In Week 2, from the conclusion of school on Wednesday, but in the event that the child is not at school then from 3.00pm until the commencement of school on Friday, but if the child is not at school then until 9.00am; and

5.1.3 Such weeks to be consistent in terms of the alternate weekend schedule presently in place;

5.2 From the commencement of school term 2019 and onwards:-

5.2.1 for one block period every 2 months of 4 days and 3 nights, commencing Friday morning and concluding Monday afternoon with the father to notify the mother no less than 14 days in advance of changeover times, to coincide with his airline flight times;

5.2.2 For 3 block periods every year when the mother shall take the child to Sydney to spend time with the father for 5 days and 4 nights, commencing Friday morning at a time no later than 10:00am and concluding Tuesday afternoon at a time no later than 2:00pm.

5.2.3 The mother shall prepare and forward to the father a schedule before 1 February in every year of the dates she proposes for the time to occur and the father shall within 72 hours of receiving the mother’s schedule respond with any changes that he requests.

5.2.4 The time that the father spends with the child pursuant to orders 5.2 be suspended during school holidays.

5.3 The father spend the following time with the child during the school holidays at the conclusion of Terms 1, 2 and 3 as follows:-

5.3.1 In 2019, for a block period of 5 days and 4 nights at the conclusion of Term 1 as agreed between the parties and, failing agreement, from 9.00am commencing on the first Saturday following the last day of the school term for the child and concluding at 6.00pm on the following Wednesday;

5.3.2 In 2019, for a block period of 6 days and 5 nights at the conclusion of Terms 2 and 3 as agreed between the parties and, failing agreement, from 9.00am commencing on the first Saturday following the last day of the school term for the child and concluding at 6.00pm on the following Thursday; and

5.3.3 From 2020, for one half of the school holidays at the conclusion of Terms 1, 2 and 3 as agreed between the parties and, failing agreement, the first half of the school holidays.

5.4 The child spend time with the father during Christmas and the summer school holidays at the conclusion of Term 4 as follows:-

5.4.1 During 2018/2019:-

(a) From 9.00am on 21 December 2018 until 3.00pm on 25 December 2018;

(b) From 9.00am on Sunday 13 January 2019 until 5.30pm Thursday 17 January 2019; and

5.4.2 In 2019/2020 from:-

(a) 9:00am on 16 December 2019 to 5.30pm on 22 December 2019;

(b) 9:00am on 6 January 2020 to 5:30pm on 12 January 2020; and

5.4.3 Commencing in 2020/2021 for one-half of every period of the summer school holidays, including Christmas Day being the first half of the school holidays at the conclusion of Term 4 in 2020 and in each alternate year thereafter and for the second half of the school holidays at the conclusion of Term 4 in 2021 and in each alternate year thereafter.

5.4.4 For the purposes of calculating the school holiday period:-

(a) The first day of the school holiday period commences at 9:00am on the day following the last day of the school term for the child;

(b) The last day of the school holiday period is 5:00pm on the day before the commencement of the school term for the child. Except the Christmas/New Year Holiday then the last day shall be two full days before school commences;

(c) The mid-point of the school holiday period is 1:00pm on the day that falls in the middle of the school holiday period;

(d) Pupil free days falling at the end or start of each school term are included in the mid-term school holiday period; and

(e) The parties shall use the term dates published on the website of C School, Suburb D.

5.5 If the child is spending time with the father in New Zealand, then changeovers shall occur at the mother’s residence.

5.6 If the child is travelling to Sydney to spend time with the father, then changeovers shall occur at Sydney Airport when the mother travels with the child to Sydney, or at City B Airport when the father travels with the child to Sydney.

Unless otherwise agreed between the parties the child shall live with the mother at all other times.

Either party is permitted to take the child overseas for holidays and in relation thereto:-

7.1 Unless otherwise agreed between the parties, the occasions on which the parties take the child overseas be at coinciding times that the child is in each parties' respective care pursuant to these orders;

7.2 Each party will give the other party not less than 28 days written notice of the intention to travel overseas;

7.3 Not less than one week before the departure date, the travelling party will furnish to the other an accurate itinerary to include the departure and return dates, the telephone number where the child can be contacted whilst away and the address of each place the child will be staying during the trip;

7.4 The travelling party will facilitate the other parent having reasonable telephone communication with the child whilst the child is away, of not less than two telephone calls per week at times nominated by the other party;

7.5 Each parent shall promptly do all things and sign all documents reasonably necessary including signing any consent letter which is required for travel outside of the Commonwealth of Australia or New Zealand within 5 days of the travelling parent requesting that consent letter or document be signed by the non-travelling parent;

7.6 The parties shall do all things and shall sign all documents necessary to ensure that, at all times, the child has a valid Australian passport and a valid New Zealand passport and the parties will share equally the costs of all renewal applications for the child's passports; and

7.7 The mother shall retain the child’s passports and provide the child’s passports to the father to facilitate overseas travel in accordance with these orders and the father return the passports to the mother at the next changeover of the child.

The parties each facilitate the child communicating with the other party by telephone and/or FaceTime when he is in the care of the other parent, including but not limited to twice per week.

The parties shall keep each other informed of their residential address and mobile telephone numbers and will notify the other party of any changes in those details within 2 days of any such change.

10.

The parties shall notify each other as soon as practicable in the event of any serious illness or injury that requires medical intervention by a doctor or hospital concerning the child whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any such authority and direction necessary to enable the other party to obtain all necessary information concerning the child from such medical practitioner, health service provider or institution.

11.

Both parties are permitted to liaise directly with the child's school and sporting bodies to obtain any necessary information about the child's progress and both parties will do all things necessary to facilitate this order.

12.

Each parent is to give the other parent as much advance notice as practicable of any appointment for the child to attend upon a specialist medical practitioner, such that the other parent may have an opportunity to attend that appointment.

13.

Both parties may attend any sporting, school, extra-curricular or special events that the child participates in regardless of which parent's care they are in at that time.

14.

Neither party may move the child’s primary place of residence from the greater City B area without the agreement of both parents or an order of a court exercising appropriate jurisdiction.

15.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

16.

All extant applications be and are dismissed other than costs, and any costs applications are to be dealt with in accordance with the Family Law Rules 2004 (Cth).

17.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same at the end of the appeal period.

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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