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Recent Family Law Judgments - Relocation 1. Herz & Picot and Picot & Picot [2008] FMCAfam 1401 (22 December 2008) 2. Carne & Carne [2008] FMCAfam 1245 (12 December 2008) Catchwords: FAMILY LAW - Parenting orders - relocation - Wife seeking to relocate to Sydney (where parties originally from) with the parties two children aged 8 and nearly 5 - Husband seeks orders the children remain in Melbourne - children's wishes - meaningful relationship with both parents - ordered children remain living in Melbourne with the Wife. Date Delivered: 12 December 2008 Before: Bender FM Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 3. Maynard & Bullen [2008] FMCAfam 1312 (9 December 2008) Catchwords: FAMILY LAW - Child aged 8 - planned relocation by mother of child from Adelaide to Sunshine Coast - application of presumption of equal shared parental responsibility - father seeks shared care arrangement - necessarily such an arrangement has implications for mother's plans to move to Sunshine Coast for employment and personal reasons - child's entitlement to have a meaningful relationship with both parents - freedom of movement - evaluation of parties' competing proposals - best interests. Date Delivered: 9 December 2008 Before: Brown FM Legislation Cited: Cases Cited: Jurisdiction Federal Magistrates Court 4. Beadle & Beadle [2008] FMCAfam 1283 (5 December 2008) Catchwords: FAMILY LAW - Parenting orders - application of s.61DA(1) presumption - where one parent has relocated interstate - equal time found to be in child's best interests - parent ordered to relocate with child. FAMILY LAW - Parenting orders - unacceptable risk of harm - tendency evidence - principles discussed - use of tendency evidence to make finding of unacceptable risk of harm - where allegation is made against a person who is not a party to the proceedings. EVIDENCE - Tendency evidence - use in parenting proceedings where there is an allegation of unacceptable risk of harm. Date Delivered: 5 December 2008 Before: Wilson FM Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 65D, 65DAA, 69ZT Evidence Act 1995, ss.97, 130 Cases Cited: Jurisdiction Federal Magistrates Court 5. Walker & Walker [2008] FamCA 1032 (25 November 2008) Catchwords: FAMILY LAW - CHILDREN - RELOCATION - Wife and child to relocate to Gippsland - Consent of the Husband Date Delivered: 25 November 2008 Before: Young J Legislation Cited: Family Law Act 1975 (Cth) Cases Cited: Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 6. Illidge & Norton [2008] FMCAfam 1255 (21 November 2008) Catchwords: FAMILY LAW - Parenting - relocation. Date Delivered: 21 November 2008 Before: Neville FM Legislation Cited: Family Law Act 1975, Part VII, ss.60B, 60B (1), (2), 60CA, 60CC, 60CC (1), (3)(c), (e) - (k), 60CC (4), 61DA, 61DAA, 61DAA (1), (2), (5) High Court of Australia, Practice Direction No 1 of 2000: Written Submissions and Authorities: All Full Court Matters Except Removal Applications or Leave or Special Leave Applications Cases Cited: Jurisdiction Federal Magistrates Court 7. Bergman & Waite [2008] FMCAfam 1242 (19 November 2008) Catchwords: FAMILY LAW - Child aged 2½ years - interim arrangements for care - parties' relationship extremely unstable - parties resident in Darwin for three months prior to final separation - mutual allegations of family violence and poor parenting - gravity of allegations unable to be determined at interim stage - immediately following separation father relocates child to Brisbane - mother seeks immediate return of child to Darwin - father contends his circumstances more stable than mother's - section 60CC factors - best interests. Date Delivered: 19 November 2008 Before: Brown FM Legislation Cited: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 8. Garvey & Eccles [2008] FMCAfam 1218 (17 November 2008) Catchwords: FAMILY LAW - Parenting - relocation - where mother has significant health issues - impact of relocation on substantial and significant time with father - effect of relocation on meaningful relationship - admissibility of evidence in family report. Date Delivered: 17 November 2008 Before: Altobelli FM Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 9. Slater & Slater [2008] FMCAfam 1230 (14 November 2008) Catchwords: FAMILY LAW - Children aged 9 and 6 - interim arrangements for care - final orders made in August 2008 - orders provide for children to live with mother and spend time with father on weekends during term time and for half of school holidays - orders also provide for mid-week time during school terms - mother wishes to move with children to [W] 226 kilometres from Adelaide CBD - father currently lives in Murray Bridge but had intended to relocate to Adelaide metropolitan area - whether relocation principles apply given distance of move - matters to be considered - best interests. Date Delivered: 14 November 2008 Before: Brown FM Legislation Cited: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 10. Hill & Gore [2008] FamCA 999 (13 November 2008) Catchwords: FAMILY LAW - CHILDREN - Best interests - relocation - absence of otherwise relevant evidence Date Delivered: 13 November 2008 Before: Fowler J Legislation Cited: Family Law Act 1975 (Cth) Cases Cited: Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 11. Champness & Hansen (No. 2) [2008] FamCA 1012 (10 November 2008) Catchwords: FAMILY LAW - ORDERS - STAY - application by father for stay of parenting orders pending appeal - orders provide for relocation of children to Ireland - consideration of best interests of the children - application for stay was filed over three months after Notice of Appeal filed - mother has made arrangements for relocation - consideration of the hardship to the appellant if stay refused compared with the hardship to the respondent if stay granted - whether refusal of the stay renders a successful appeal nugatory - consideration of merits of the appeal - application for stay refused Date Delivered: 10 November 2008 Before: Burr J Legislation Cited: Family Law Rules 2004 (Cth) r 22.12 Cases Cited: Carlin and Carlin (1977) FLC 90-320 In the marriage of Kelly (1981) FLC 91-017 Clemett and Clemett (1981) FLC 91-013 EJK and TSL (No 4) [2006] FamCA 1022 Brennan and Shaw (Stay Appeal) [2008] FamCAFC 138 W and W (unreported, 10 October 1996) Sampson and Hartnett [2007] FamCA 732 CSN v JBN (1998) 24 Fam LR 174 Sanders (1976) FLC 90-078 K and B (2006) FLC 93-288 EJK and TSL (No 2) (2006) 35 Fam LR 590 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 12. F and B [2008] FCWA 132 Catchwords: CHILDREN - With whom a child lives - Relocation Date Delivered: 07/11/2008 Before: Thackray CJ Legislation Cited: Family Law Act 1975, s 60B, s 60CC, s 61C, s 65DAA Cases Cited: AMS v AIF (1999) 199 CLR 160 Jurisdiction Family Court (WA) 13. Drake & Drake [2008] FMCAfam 1140 (6 November 2008) Catchwords: FAMILY LAW - Parenting orders - relocation - Wife seeking to relocate to [Y] with parties two children aged 14 and 12 - parties agree Wife to relocate with eldest child - Husband seeks youngest child remain with him - separation of siblings - weight to be given to children's views - ability to facilitate relationship between child and other parent - ordered both children reside with Wife and she be permitted to relocate forthwith. Date Delivered: 6 November 2008 Before: Bender FM Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 14. Partington & Cade [2008] FamCA 945 (31 October 2008) Catchwords: FAMILY LAW - CHILDREN - allegations of sexual abuse made against father - discussion of standards of proof applicable to positive finding of sexual abuse and finding of unacceptable risk - finding that children at unacceptable risk of abuse in father's unsupervised care. FAMILY LAW - CHILDREN - with whom children live and spend time - application by mother to relocate from Tasmania to New South Wales - father's application for children to live with him must fail given finding of unacceptable risk - where mother opposes father spending any time with children - s 60CC factors - need to maintain children's relationship with father and protect children from abuse - history of frequent and blatant breaches of Court orders by mother, including moving interstate with the children - failure of mother to support or encourage children's relationship with father - assessment of parties' competing proposals - relocation application refused - children to be returned to Tasmania - consideration of Full Court decision of Sampson and Hartnett (No 10) (2007) FLC 93-350 - mother to have sole parental responsibility - father to spend supervised time with children and have telephone communication. FAMILY LAW - PROPERTY SETTLEMENT - determination of asset pool - treatment of legal fees - whether certain moneys loaned or gifted to parties. FAMILY LAW - PROPERTY SETTLEMENT - contributions - where contributions essentially equal during relationship - where mother's contribution greater post separation due to her care of children - 15% adjustment to mother due to s 75(2) factors - property to be divided 70%/30% in mother's favour. Date Delivered: 31 October 2008 Before: Burr J Legislation Cited: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 75(2) & 79 Evidence Act 1995 (Cth) s 140 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 M and M (1988) FLC 91-979 WK v SR (1997) FLC 92-787 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-255 Johnson and Page (2007) FLC 93-344 Napier and Hepburn (2006) FLC 93-303 N and S (1996) FLC 92- 655 Potter and Potter (2007) FLC 93-326 AMS v AIF: AIF v AMS (1999) FLC 92-852 A v A: Relocation Approach (2000) FLC 93-035 H and L (2000) FLC 93-036 U v U (2002) FLC 93-112 Bolitho and Cohen (2005) FLC 93-224 Morgan and Miles (2007) FLC 93-343 Taylor and Barker (2007) FLC 93-345 Sampson and Hartnett (No 10) (2007) FLC 93-350 Chorn and Hopkins (2004) FLC 93-204 Fogarty, J, 'Unacceptable risk - A return to basics' (2006) 20 Australian Journal of Family Law 249 Kelly, J B and Lamb, M E, 'Developmental issues in relocation cases involving young children: When, whether and how? Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 15. Winter & Winter [2008] FamCAFC 159 (27 October 2008) Catchwords: FAMILY LAW - APPEAL - CHILDREN - Relocation - Where father appealed against orders allowing the mother to relocate children from Sydney to the Gold Coast - Where father argued that the trial Judge erred in failing to give adequate reasons as to why relocation was in the best interests of the children - Where father argued that the trial Judge erred in failing to give adequate reasons for departing from the family consultant's unchallenged evidence - Appeal allowed - Matter remitted for re-hearing FAMILY LAW - COSTS - Certificates ordered for appeal and re-hearing under Federal Proceedings (Costs) Act 1981 (Cth) Date Delivered: 27 October 2008 Before: Coleman, Thackray and Ryan JJ Legislation Cited: Family Law Act 1975 (Cth), s 62G Federal Proceedings (Costs) Act 1981 (Cth), s 6, s 8, s 9 Cases Cited: Bennett and Bennett (1991) FLC 92-191 D and P [2006] FamCA 170 Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 Hall and Hall (1979) FLC 90-713 House v The King (1936) 55 CLR 499 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Sampson and Hartnett (No 10) (2007) FLC 93-350 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Tyson and Tyson (No 2) (1993) FLC 92-401 Jurisdiction Full Court of the Family Court (post-2008) 16. Wiley & Wiley [2008] FamCAFC 153 (22 October 2008) Catchwords: FAMILY LAW - APPEAL - CHILDREN - with whom a child lives and spends time - relocation from country New South Wales to a town near Melbourne - where the trial judge allowed the mother to take the children to a town near Melbourne to live with her - where the trial judge provided for the children to spend school holiday and some weekend time with the father in country New South Wales - whether the trial judge gave proper consideration to the effect on the children of the mother's mental health - whether the trial judge gave proper consideration to the effect on the children of the relocation - whether the trial judge erred in the application of s 65DAA of the Family Law Act 1975 (Cth) in light of the Full Court cases of Goode & Goode and Taylor & Barker - whether there was a miscarriage of the trial judge's discretion - no substance found in asserted errors - presumption in favour of correctness of discretionary judgments emphasised - appeal dismissed. FAMILY LAW - APPEAL - COSTS - costs order sought by the mother if the father's appeal unsuccessful - costs order not made. Date Delivered: 22 October 2008 Before: Bryant CJ, Finn and Thackray JJ Legislation Cited: Family Law Act 1975 (Cth), sections 60B, 60CA, 60CC, 61DA, 65DAA Cases Cited: A v A: Relocation Approach (2000) FLC 93-035 Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Goode & Goode (2006) FLC 93-286 R v R (1998) FLC 92-820 Taylor v Barker (2007) FLC 93-345 Jurisdiction Full Court of the Family Court (post-2008) 17. Byrne & Porter [2008] FMCAfam 1254 (21 October 2008) Catchwords: FAMILY LAW - Parenting - relocation - best interests of children - consideration of competing positions and interests. Date Delivered: 21 October 2008 Before: Coker FM Legislation Cited: Family Law Act 1975 (Cth), ss.60CA, 60CC(2) & (3), 61DA, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 18. Magee & Graham & Magee [2008] FMCAfam 1063 (14 October 2008) Catchwords: FAMILY LAW - Parenting - residence and relocation - interim hearing - grandparents - children's best interests - children's views. Date Delivered: 14 October 2008 Before: Neville FM Legislation Cited: Family Law Amendment (Shared Parental Responsibility) Act 2006 Family Law Act 1975, ss.60B (1), (2), (2)(b), 60CA, 60CC, 60CC (1), (2), (3)(a) - (c), (e), (f), (i) - (k), (4), 61DA, 65DAA (1), (2) Cases Cited: Jurisdiction Federal Magistrates Court 19. Lawlor & Lawlor [2008] FMCAfam 1042 (3 October 2008) Catchwords: FAMILY LAW - Parenting orders - relocation - Wife seeking to relocate to [D] with parties' two children aged four and two - Husband seeks Wife be restrained from removing children from Melbourne Metropolitan area -developmental needs of young children in consolidating relationship with Husband - ordered Wife restrained from relocating with children until October 2009. Date Delivered: 3 October 2008 Before: Bender FM Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 20. Christie & Balkin [2008] FMCAfam 665 (3 October 2008) Catchwords: FAMILY LAW - Parenting - best interests of the child - high conflict - lack of communication- willingness and capacity to promote child's relationship with the other parent - meaningful relationship with both parents - relocation. Date Delivered: 3 October 2008 Before: Neville FM Legislation Cited: Family Law Act 1975, Part VII, ss.60B, 60B (1), (1)(a), (2), (2)(b), 60CA, 60CC, 60CC (1), (2), (3)(a), (c), (e) - (m), (4), (4A), 61DA, 65DAA (1), (2) Cases Cited: Jurisdiction Federal Magistrates Court | Fathers4Equality | this page has been most recently updated on 27 December 2008 | |