Zanderlake & Long - [2007] FamCA 1630

FAMILY COURT OF AUSTRALIA

ZANDERLAKE & LONG

[2007] FamCA 1630

FAMILY LAW – CHILDREN – Child related proceedings – Relocation

FAMILY LAW – SPOUSAL MAINTENANCE

Family Law Act 1975 (Cth)
Family Law (Shared Parental Responsibility) Act 2006 (Cth)

Goode & Goode (2006) FLC 93-277
B & B; Family Law Reform Act 1995 (1997) FLC 92-775
Mazorski & Albright (2007) 37 Fam LR 518
Godfrey & Sanders [2007] FamCA 102
Bale & Jenkins [2007] FamCA 809
Taylor & Barker (2007) 37 Fam LR 461
In the Marriage of Mitchell (1995) 19 Fam LR 44

APPLICANT:

Mr Zanderlake

RESPONDENT:

Ms Long

FILE NUMBER:

SYF

2410

2006

DATE DELIVERED:

21 December 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice O'Ryan

HEARING DATE:

24 and 25 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd

SOLICITOR FOR THE APPLICANT:

Musgrave Peach

COUNSEL FOR THE RESPONDENT:

Mr Price

SOLICITOR FOR THE RESPONDENT:

Price & Company

Orders

Until 1 February 2008 the Father pay or cause to be paid to the Mother the sum of $400 per week from the date of these Orders, such payment to be made by way of electronic funds transfer every Monday into such bank account as the Mother may nominate in writing from time to time, the first such payment to be made on the first Monday following the date of this order.
All previous parenting orders related to the children J born on … March 2003 and L born on … October 2004 are discharged as and from 18 January 2008.
The Mother Ms Long and the Father Mr Zanderlake have equal shared parental responsibility for each of the children.
As from 19 January 2008 the Mother be permitted to relocate the children to reside in Melbourne, Victoria.
In the event the Mother and children reside in Victoria and the Father does not also reside in Victoria, the children spend time with the Father during the following periods:
5.1Excluding the periods set forth in Orders 5.2, 5.3, 5.4 and 5.5 below, the first weekend of every month from 9.00 am on Saturday until 5.00 pm on the following Sunday;
5.2For one week of the first gazetted Victorian public school holiday period in each year, being for the first week in each odd numbered year commencing at the beginning of the said school vacation, and for the second week in each even numbered year, commencing one week prior to the conclusion of such first public school holiday in Victoria each year and concluding at 3.00 pm on the day before the second public school term resumes in Victoria; and
5.3For the entirety of the second gazetted public school holidays in Victoria each year, commencing from the beginning of such school holiday period until 3.00 pm on the day before the third public school term resumes in Victoria; and
5.4For the entirety of the third gazetted public school holidays in Victoria each year, commencing from the beginning of such school holiday period until 3.00 pm the day before…

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 Zanderlake & Long

Details

AGLC: Zanderlake & Long [2007] FamCA 1630
Case: [2007] FamCA 1630
Decision Date: 21 December 2007

CaseChat Overview and Summary

This matter concerned an application before Justice O'Ryan concerning parenting arrangements for two children, J and L, and spousal maintenance. The primary dispute involved the mother, Ms Long, seeking to relocate the children to Melbourne, Victoria, and the father, Mr Zanderlake, opposing this move.

The court was required to determine whether to discharge previous parenting orders and, if so, to make new orders regarding the children's living arrangements and time spent with each parent. Specifically, the court had to consider the mother's application for permission to relocate the children to Melbourne and establish new parenting orders that would apply following this relocation, including provisions for equal shared parental responsibility and detailed arrangements for the children's time with each parent. The court also addressed spousal maintenance for the mother.

Justice O'Ryan ordered that previous parenting orders be discharged and that the mother and father have equal shared parental responsibility for the children. Permission was granted for the mother to relocate the children to Melbourne from 19 January 2008. The court then set out detailed provisions for the children's time with the father, distinguishing between scenarios where the father resides in Melbourne and where he does not. These provisions included specific arrangements for weekends, school holidays, and public holidays, with the father bearing the expense of travel and accommodation when the children reside in Victoria and he does not. The court also ordered the father to pay the mother $400 per week in spousal maintenance until 1 February 2008. Further orders stipulated communication protocols regarding the children's health and education, and referenced a fact sheet detailing contravention consequences under the Family Law Act 1975 (Cth).

Orders

Orders of the court

Until 1 February 2008 the Father pay or cause to be paid to the Mother the sum of $400 per week from the date of these Orders, such payment to be made by way of electronic funds transfer every Monday into such bank account as the Mother may nominate in writing from time to time, the first such payment to be made on the first Monday following the date of this order.

All previous parenting orders related to the children J born on … March 2003 and L born on … October 2004 are discharged as and from 18 January 2008.

The Mother Ms Long and the Father Mr Zanderlake have equal shared parental responsibility for each of the children.

As from 19 January 2008 the Mother be permitted to relocate the children to reside in Melbourne, Victoria.

In the event the Mother and children reside in Victoria and the Father does not also reside in Victoria, the children spend time with the Father during the following periods:

5.1 Excluding the periods set forth in Orders 5.2, 5.3, 5.4 and 5.5 below, the first weekend of every month from 9.00 am on Saturday until 5.00 pm on the following Sunday;

5.2 For one week of the first gazetted Victorian public school holiday period in each year, being for the first week in each odd numbered year commencing at the beginning of the said school vacation, and for the second week in each even numbered year, commencing one week prior to the conclusion of such first public school holiday in Victoria each year and concluding at 3.00 pm on the day before the second public school term resumes in Victoria; and

5.3 For the entirety of the second gazetted public school holidays in Victoria each year, commencing from the beginning of such school holiday period until 3.00 pm on the day before the third public school term resumes in Victoria; and

5.4 For the entirety of the third gazetted public school holidays in Victoria each year, commencing from the beginning of such school holiday period until 3.00 pm the day before the fourth public school term resumes in Victoria; and

5.5 For one half of the Christmas/New Year gazetted Victorian public school holiday period in each year, as follows:

5.5.1 For the Christmas/New Year holiday period for 2008/2009, and every second year thereafter, from the beginning of the said school vacation,

5.5.2 For the Christmas/New Year holiday period for 2009/2010, and every second year thereafter from the mid point of the said holiday period and concluding at 3.00 pm on the day before the first public school term resumes in Victoria.

5.6 For such other times and periods as the parties herein may in writing agree.

5.7 For the purposes of all occasions where the Father shall spend time with the children, the Father shall be liable for and shall bear the expense of all travel and accommodation arrangements.

If the Father resides in Melbourne, Victoria then, unless otherwise agreed between the parties, the children spend time with the Father during the following periods:

6.1 During each gazetted Victorian public school term each alternate weekend from 9.00 am Saturday until 5.00 pm the following Sunday and each other week from after school Wednesday until before school on the following Thursday morning;

6.2 One half of each of the first three gazetted Victorian public school holiday periods being the first half in odd numbered years and the second half in even numbered years.

6.3 One half of the Christmas/New Year gazetted Victorian school holiday period in each year, as follows:

6.3.1 For the Christmas/New Year holiday period for 2008/2009, and every second year thereafter, from the beginning of the said school vacation,

6.3.2 For the Christmas/New Year holiday period for 2009/2010, and every second year thereafter from the mid point of the said holiday period and concluding at 3.00 pm on the day before the first public school term resumes in Victoria.

6.4 On Father’s Day if it falls on a day that the children are living with the Mother from 9.00 am until 5.00 pm on Father’s Day.

6.5 In the event the children are not spending time with the Father on their birthday, the Father shall spend time with both children on each of their birthdays for a period of two hours on a school day or on other days for a period of three hours.

6.6 In the event that the Father is spending time with the children on Sunday which is Mother’s Day, then on that day the Father shall return the children to the Mother by no later than 9.00 am on Mother’s Day.

6.7 In the event the children are not living with the Mother on their birthday and such birthday falls on a weekend when the children are with the Father, the Mother shall spend time with both children on either of their respective birthdays for a period of three hours on that day, and in this regard the Mother shall collect the children from the Father’s residence and return them at the conclusion of that three hour period.

6.8 For the purposes of this Order 6, the Mother shall deliver the children to the Father’s residence in Melbourne at the commencement of the Father spending time with the children, and the Father shall return the children to the Mother’s residence in Melbourne at the conclusion of him spending time with the children.

6.9 For such other periods or at such other times as the parties herein may agree in writing.

Unless otherwise specified in Orders 5 and 6 above, the children shall live with the Mother at all other times.

Each of the Mother and Father will:

8.1 Notify the other as soon as possible and, in any event, within twenty-four hours of any serious illness or injury suffered by the children or either of them, whilst in the care of that parent;

8.2 Notify the other not less than seven days prior to any change of his or her residential address and/or telephone number;

8.3 Notify the other and keep the other notified of a telephone number where the other and the children may be contacted in the event of an emergency;

8.4 Notify the other of the name, address and telephone number of the children’s treating doctor(s) and authorise that doctor(s) in writing to release to the other particulars of any of the children’s health or treatment at any time requested by the other.

8.5 Authorise the school/pre school attended by each of the children to allow for each of the parties to obtain particulars of each child’s welfare, progress at school, school reports, school photographs, details of upcoming functions and activities and any other information distributed by the school.

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.

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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