Woyinka and Saha - [2016] FamCA 483

FAMILY COURT OF AUSTRALIA

WOYINKA & SAHA

[2016] FamCA 483

FAMILY LAW – CHILDREN – Final parenting orders – Relocation – where the mother proposes to relocate with a five year old child to Brazil – where the mother suffers from anxiety and is medicated for depression – where the mother’s mental health has been impacted by her social isolation and financial difficulties in Australia – where the mother does not speak English as a first language – where the child has ongoing medical problems which have previously been diagnosed and treated in Brazil – where relocation is supported by the family consultant and the Independent Children’s Lawyer – final orders made permitting the mother to relocate with the child to Brazil and spend time with the father in Brazil and Melbourne.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Collu & Rinaldo [2010] FamCAFC 53
MRR v GR (2010) 240 CLR 461
AMS v AIF (1999) 199 CLR 160
Goode and Goode (2006) FLC 93-286
Taylor v Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238

Malcolm & Monroe and Anor (2011) FLC 93-460

APPLICANT:

Mr Woyinka

RESPONDENT:

Ms Saha

INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

FILE NUMBER:

MLC

2034

2014

DATE DELIVERED:

14 January 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

21 – 25 & 28 – 29 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Goldthorp

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

Orders

IT IS ORDERED THAT

The Mother have sole parental responsibility for the child B born … 2010 (“the child”).
The interim parenting orders made by consent on 19 March 2014 in the Federal Circuit Court be discharged including but not limited to paragraph 3 of those Orders with respect to the child’s passports.
Paragraphs 3, 4, 5 and 7 of the interim parenting orders made by consent in this Court on 28 September 2015 be discharged.
The solicitors for the Mother are to return the child’s passports to the Mother.
The Mother keep the Father advised in writing, by email, of decisions she makes for the child regarding long term issues such as enrolment at school, religious instruction and medical treatment.
The child live with the Mother.
The Mother be permitted to relocate the child’s residence to Brazil.
Paragraphs 1, 2 and 6 of the interim parenting orders made by consent in this Court on 28 September 2015 be discharged on the child’s departure for Brazil SAVE that those paragraphs of the orders remain in full force and effect until the child’s departure for Brazil.
Upon the child’s relocation to Brazil the child spend time and communicate with the Father as follows:
(a)By Skype at times and days to be agreed and failing agreement:
(i)each Monday, Wednesday and Saturday between 8.30 am and 9.00 am City C time or at a time convenient to both…

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 Woyinka and Saha

Details

AGLC: Woyinka and Saha [2016] FamCA 483
Case: [2016] FamCA 483
Decision Date: 14 January 2016

CaseChat Overview and Summary

This matter concerned parenting orders made by Thornton J in the Family Court of Australia. The dispute involved the mother and father of a child, B, born in 2010, regarding the child's residence and future arrangements.

The court was required to determine a range of issues concerning the child's upbringing, including who should have sole parental responsibility, where the child should live, and whether the mother should be permitted to relocate the child to Brazil. The court also had to consider the terms of the child's time and communication with the father, both before and after any relocation, as well as provisions for medical and educational information sharing.

Thornton J made orders granting the mother sole parental responsibility for the child and permitting the child to live with the mother and relocate to Brazil. The court discharged previous interim parenting orders and established detailed arrangements for the child's time and communication with the father, including provisions for Skype contact, visits to Australia and Brazil, and communication during school holidays and terms. The mother was also ordered to keep the father advised in writing of long-term decisions regarding the child's education, religious instruction, and medical treatment, and to provide authorities for the father to receive information from the child's treating specialists and school. The court also ordered that the mother inform the father of her residential and email addresses in Brazil.

Orders

Orders of the court

IT IS ORDERED THAT

The Mother have sole parental responsibility for the child B born … 2010 (“the child”).

The interim parenting orders made by consent on 19 March 2014 in the Federal Circuit Court be discharged including but not limited to paragraph 3 of those Orders with respect to the child’s passports.

Paragraphs 3, 4, 5 and 7 of the interim parenting orders made by consent in this Court on 28 September 2015 be discharged.

The solicitors for the Mother are to return the child’s passports to the Mother.

The Mother keep the Father advised in writing, by email, of decisions she makes for the child regarding long term issues such as enrolment at school, religious instruction and medical treatment.

The child live with the Mother.

The Mother be permitted to relocate the child’s residence to Brazil.

Paragraphs 1, 2 and 6 of the interim parenting orders made by consent in this Court on 28 September 2015 be discharged on the child’s departure for Brazil SAVE that those paragraphs of the orders remain in full force and effect until the child’s departure for Brazil.

Upon the child’s relocation to Brazil the child spend time and communicate with the Father as follows:

(a) By Skype at times and days to be agreed and failing agreement:

(i) each Monday, Wednesday and Saturday between 8.30 am and 9.00 am City C time or at a time convenient to both parties and the child;

(ii) on special occasions such as the child’s birthday, the Father’s birthday and Christmas Day at times convenient to the parties and the child;

(b) Provided that the father fund a return airfare for the child, each alternate year in Melbourne for a period of no less than 30 days as follows:

(i) for no less than four hours each day on days to be agreed and failing agreement each alternate day;

(ii) as otherwise agreed in writing between the parties;

(c) In Brazil, upon the father giving the Mother no less than 30 days notice of his intention to travel to Brazil, as follows:

If the Father visits the child in Brazil during the child’s school holidays:

(i) for no less than four hours each alternate day for up to fifteen occasions while the Father is in Brazil;

(ii) as otherwise agreed in writing between the parties;

If the Father visits the child in Brazil during the child’s school term:

(iii) on each weekend day for a period of four hours and Tuesday and Thursday for two hours after school;

(d) As otherwise agreed between the parties in writing.

10.

The Mother be permitted to be in attendance for the first week of time spent between the child and the Father both in Brazil and in Australia on each visit unless the Mother deems her attendance not to be necessary.

11.

The Father be permitted to send to the child cards, gifts and letters at any time, and the Mother to ensure the child receives the same, and encourage the child to respond to the Father and acknowledge receipt of the cards, gifts and letters.

12.

Forthwith upon her arrival in Brazil, the Mother provide the name and contact details of all treating specialists of the child to the Father and provide a full authority to the medical specialist to provide to the Father any information he may request about the child from time to time.

13.

The Mother provide an authority to the child’s medical practitioners in Australia and Brazil for them to communicate directly with the Father and to authorize him to attend medical appointments if practicable.

14.

The Mother provide an authority to the child’s school in Brazil to provide the Father, at the Father’s expense if any, with copies of school reports, school photos and notices.

15.

The Mother shall keep the Father informed as to her residential address in Brazil and email address and advise the Father of any change to the same within 24 hours of such change.

16.

All extant applications be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

17.

The Independent Children’s Lawyer be discharged on 14 March 2016.

IT IS DIRECTED THAT

18.

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of 30 days from the date of these orders, or otherwise upon the conclusion of any appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.