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Taylor & Barker [2007] FamCA 1246 – 19/10/2007

Is this decision going completely against the intent of the new Family Law Act and completely annihilates this fathers contact regime and relationship with his son?

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An appeal from decsion of Federal Magistrate in relation to relocation - Spells BAD NEWs for relocation proceedings

CATCHWORDS:

FAMILY LAW - Where Federal Magistrate made orders allowing the mother to relocate the child from Canberra to North Queensland so that the mother could live with the father of her second child whom she wished to marry.

Whether Federal Magistrate erred in his application of the Family Law Act 1975 as amended by the Family Law (Shared Parental Responsibility) Act 2006 .

Whether Federal Magistrate erred in dealing with the issue of relocation and the mothers reasons for wishing to relocate as a separate issue

Whether Federal Magistrate erred in failing to consider whether the child spending equal time or substantial and significant time with each parent was reasonably practicable

Discussion of the application of ss 60CC and 65DAA of the Family Law Act where one party wishes to change the residence of the child from the place where the other parent lives.

Whether Federal Magistrate failed to consider the likely effect on the child of the separation from his father and paternal grandparents

Whether Federal Magistrate failed to adequately evaluate the nature and strength of the relationship between the child and his father and paternal grandparents.

Whether the Federal Magistrate adequately evaluated the likelihood of the mother?s new partner relocating himself should the orders prevent relocation of the child.

The Court was not persuaded that these grounds of appeal had merit.

Whether the Federal Magistrate gave excessive weight to the mothers reasons for and desire to relocate

Whether Federal Magistrate erred in speculating as to the consequences of the mother not being permitted to relocate in the absence of evidence from her as to that matter

Majority found there was no substance in these grounds.

APPEAL DISMISSED

FAMILY LAW - COSTS Each party to pay his or her own costs of and incidental to the appeal.

Note: The period for seeking special leave to appeal to the High Court has not expired

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Attachment
Taylor & Barker [2007] FamCA 1246

Executive Secretary - Shared Parenting Council of Australia
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Great precedent. What happens if Mum and new Dad decide to leave the country. No probs, bye, enjoy your stay.

Given that 2nd marriages are more likely to end, what happens to the child if this one goes bust in North Queensland?

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 

Same old same old

While the individual Judges and Magistrates seem to have made huge strides in certain areas, the Full court is effectively unravelling the intent of the 2006 amendements to the Family Law Act.

The says that while the child's best interests trump the parents interests, the custodial parents right to P off is paramount. Moving down the street is not constructive if you wish to get the ex out of your (and the children's) life. Find a partner in another state, make a new baby and then ask the court and all will be forgiven and all wished  granted. There have been a number of these.

This is in the same vein as the Full court overturning custodial sentences for serious, and in one case serial contraventions.

In a very recent appeal against a custodial sentence, the full court held that the contravention was not tested to a criminal standard of proof which is required before a criminal type penalty can be imposed. I don't know which planet they come from, but I would understand that a person who states from the witness box that 1/ the events happened as described, 2/ their reasonable excuse is no money for petrol and 3/ they would not have done what was ordered anyway when considered in conjunction with a precious occasion where a bond had been imposed and broken and where a custodial sentence was threatened and the party was given the choice before sentencing to comply or face jail would definitely constitute a "BEYOND REASONABLE DOUBT" decision and constitute a flagrant disregard for the Authority of the Court.

For me - Shared Parenting is a Reality - Maybe it can be for you too!
Why is this not seen as contempt of court, if nothing else. They are defying a magistrate.

We were recently told by a magistrate that in order to win a contravention we had to satisfy a criminal burden of proof. Are the laws being changed on the fly and no one is telling the self representers?

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
oneadadc said
The says that while the child's best interests trump the parents interests, the custodial parents right to P off is paramount. Moving down the street is not constructive if you wish to get the ex out of your (and the children's) life. Find a partner in another state, make a new baby and then ask the court and all will be forgiven and all wished granted. There have been a number of these.
Unfortunately this is exactly what happened to me. My decision was handed down last month. I will have shared care (2 weeks on/off) for at least one more year before my daughter starts "prep-school", then I will only see her on school holidays.

The FM made a judgement that "prep-school" was more important than continuing shared care. Considering that its non-compulsory education, should I appeal against this and have my daughter in shared care for another year? Maybe attend prep in both states?
What happens if the ex decides to move away from me can I have the driving shared as I do all of it now? How far is she alllowed to move?
My ex moved an 8 hour drive away from me with two of the kids, and insisted I do half the driving despite me having a track record of falling asleep. 3 years later and we are still meeting half way (Moree). My solicitor tried to get it so he would do all the driving but he would hear nothing of it.

I think you would have a good chance of having the driving shared. I'm sorry but I don't know how far away she is allowed to move, I think it depends on the judge….

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
This is something people should be putting in their orders (if they can). I know i am this time around. But i dont remember reading any suggestions about this in any of the material the mediation centre gave us?

We are proposing that neither of them can move outside a 30min driving radius of the other (currently driving time is at least 45min, so neither of them can move further away). If they want to move outside that, they need to let the other parent know, and the other parent needs to consent, or it will have to go to mediation, and if no agreement then it will have to got to court.

Oh and if one parent moves, and the driving time increses, the parent that moves has to do the additional driving time (ie, the parent who has not moved wont be inconvenianced and wont have to drive more just because the other parent moves).

I only thought to put this in from reading about what happens to other people (such as some of the stories above).

Also as the child gets older, contact time is increased, so we don't want either of the parents moving away and making this harder.

Women move all the time. In fact, it's better if you move first rather than ask permission, because then you can argue status quo. Once you are re-sited, you can be taken to court and all you have to say is "I will be too sad if I am made to relocate" and the magistrate will say this over rides best interests of the child. I had hoped that presumption of shared parent would over ride this, but recent cases seem to indicate otherwise.

I believe this would even be the case if a consent order was given.

What I would do is add a clause indicating that should the parent move interstate, they will bear ALL costs for facilitating access.

Definitely get the other party to commit to this. But for those who wont stand by their word, there is still little you can do for the ones that don't want to have you as a parent in the child's life.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Of course one evil plan is move to where they are. I made the comment one day that I would move to the same town as my ex just so I could see more of the kids and the horrified looks on their faces as they all said as one, "Dad would kill you" figuratively speaking.

Despite the 8/9 hour drive my kids prefer the distance cos there is less animosity and aggravation.

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
I hear you J (cool icon by the way).

If I didn't have a fantastic job and an ex down here, we'd be cheek by jowl with our ex and dss RIGHT now.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Miacat said
This is something people should be putting in their orders (if they can). I know i am this time around. But i dont remember reading any suggestions about this in any of the material the mediation centre gave us?
This is often referred to a 'Boundary Order'. You can put what you like in Consent orders but Courts are very reluctant to impose any in judicial determinations. There is a basic constitutional right of freedom of movement so it is only when parties agree to waive this right that such orders exist.

Relocation cases often use BIC or order the children back therefore giving a parent the option to move back. In contentious cases (likely to go to Appeal) this stops an Appeal against 'Freedom of movement'.

The order generator will contain boundary orders.

The SPCA Rice and Asplund submission to the AG and CJ contains a section on 'relocation' and 'move aways'.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Artemis said
Women move all the time. In fact, it's better if you move first rather than ask permission, because then you can argue status quo. Once you are re-sited, you can be taken to court and all you have to say is "I will be too sad if I am made to relocate" and the magistrate will say this over rides best interests of the child. I had hoped that presumption of shared parent would over ride this, but recent cases seem to indicate otherwise.

I believe this would even be the case if a consent order was given.

What I would do is add a clause indicating that should the parent move interstate, they will bear ALL costs for facilitating access.
I would suggest women would be thinking very much twice or three times before moving and taking significant legal advice before hand… The judgements we are seeing including

This recent judgement from CFM Pascoe shows that relocations are not being permitted.

I strongly suggest no one moves because you will be relocated back more often than not. Probably incurring a lot of court costs along the way. Our advice on relocations is to lodge immediate and urgent recovery orders with the Federal Magistes who are extremly agile in regard to expiditing matters in these cases. It is now (Since July 2006) the responsibility of the "lives with parent" to facilitate a meaningful involvment for the child with the other parent. If you are unsure of what this means please read the explanatory memorandum and s60CC.
60B Objects of Part and principles underlying it

8 (1) The objects of this Part are to ensure that the best interests of 9 children are met by:
10 (a) ensuring that children have the benefit of both of their 11 parents having a meaningful involvement in their lives, to the 12 maximum extent consistent with the best interests of the
13 child;
The SPCA is monitoring relocation matters closely with a view to further reforms if required. There is nothing so destroying to a child as the loss of contact with one parent through relocation. If we had our way no relocations would be permitted at all unless parties had appropriate agreement for contact arrangements…. The SPCA submission on relocation is in the forums.

Last edit: by Secretary SPCA


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
My comments were tongue in cheek and out of context. I would never recommend anyone abscond with their children.

It is important to know that legal aid may not make a recovery order for you if they believe you will not win (hence will  not fund). The short answer to this is to self-represent and do the recovery order yourself. It is not onerous.

I believe our case will become a test case. What happens when the ex unilaterally absconds and FMs wont/haven't ordered recovery? I'm hoping that the orders coming down will state lives with unless the ex relocates and then has majority shared with us. I think that's the absolute best to hope for.

We shall see.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Go for directly for s 112AP ie flagrant breach of an order, and no limit on time in gaol for the ex.
Family Law Act 1975 said
PART XIIIB - CONTEMPT OF COURT - Sect 112AP - CONTEMPT

Contempt

(1)  Subject to subsection (1A), this section applies to a contempt of a court that:

a)  does not constitute a contravention of an order under this Act; or

b)  constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

(1A)  This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.

(2)  In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.

(3)  The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.

(4)  Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.

(5)  Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.

(6)  The court may make an order for:

a)  punishment on terms;

b)  suspension of punishment; or

c)  the giving of security for good behaviour.

(7)  Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.

(8)  To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first‑mentioned person's liability to make the payment.

(9)  In this section:

"order under this Act" means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
Hmm, yes, quite. Very tempting.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Artemis said
My comments were tongue in cheek and out of context. I would never recommend anyone abscond with their children.

It is important to know that legal aid may not make a recovery order for you if they believe you will not win (hence will  not fund). The short answer to this is to self-represent and do the recovery order yourself. It is not onerous.
Thanks for that clarification Artemis. I should have remembered that your sense of humour is one of your strong traits and much needed and noted in other posts around the forums.  


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Will have to make sure I use more emoticons next time...

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Artemis said
Will have to make sure I use more emoticons next time…
That takes the fun out of trying to figure it out :P

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
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