A and H - [2002] FMCAfam 402

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A & H

[2002] FMCAfam 402

FAMILY LAW – Children – mother relocating interstate on temporary basis – appropriate contact – whether appropriate to reimpose previous parenting regime upon mother’s return.

Family Law Act 1975, ss.60B, 65E, 68F

B and B: Family Law Reform Act (1997) FLC 92-755

T and N [2001] FMCAfam 222

Applicant:

Y J A

Respondent:

D W H

File No:

(P)DNM 2210 of 2000

Delivered on:

11 December 2002

Delivered at:

Darwin

Hearing Date:

4 December 2002

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Ms Terry

Solicitors for the Applicant:

Janet Terry Barrister & Solicitor

Counsel for the Respondent:

Mr Cassells

Solicitors for the Respondent:

Terrill & Associates

ORDERS

That the Orders made by the Family Court of Australia at Darwin on
3 August, 2000 be discharged.
That the husband and wife have responsibility for making all decisions concerning the long term care, welfare and development of the child of the marriage B R H born the 3^rd of December 1996.
That the said child live with the wife and she be permitted to relocate with him to Victoria or to any other location within Australia to which the wife’s husband, M C A may be posted from time to time.
That each of the parties have responsibility for making decisions concerning the day to day care, welfare and development of the said child on all occasions when the said child is with him or her.
That in the event that the said child is residing outside of the Northern Territory the husband have contact to him as follows:
(a)for the first half of the April school holidays in 2003 and each odd year after and the second half of the April school holidays in 2004 and each even year thereafter;
(b)for the whole of the mid year school holidays;
(c)for the first half of the September school holidays in 2003 and each odd year thereafter and the second half of the September school holidays in 2004 and each even year thereafter;
(d)for the first half of the Christmas school holidays in 2003 and each odd year thereafter and for the second half of the Christmas school holidays in 2004 and each even year thereafter;
The husband and wife shall share equally the cost of air travel between the residential location of the child and Darwin for each contact period as specified in Order 5 hereof other than the mid year contact period, which shall be the sole financial responsibility of the husband.
That in the event that the wife judges it necessary for the child to be accompanied by a flight attendant on any trip taken by air to enable the child to have contact with the husband she shall be solely responsible for all expense related to such accompaniment of the child.
During all periods that the said child is living interstate, the husband shall have telephone contact to the child on a liberal basis…

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 A and H

Details

AGLC: A and H [2002] FMCAfam 402
Case: [2002] FMCAfam 402
Decision Date: 11 December 2002

CaseChat Overview and Summary

The case of A and H involved a dispute between a husband and wife concerning the care and custody of their child, B R H, born on 3rd December 1996. The Family Court of Australia at Darwin was tasked with determining the arrangements for the long-term care, welfare, and development of the child, as well as establishing contact and financial responsibilities for the parents.

The primary legal issues revolved around the determination of the child's residence, the allocation of parental responsibilities for both long-term and day-to-day care, and the establishment of a contact schedule for the non-residential parent. The court also needed to decide on the financial obligations of the parents concerning travel and other expenses related to contact, as well as communication arrangements when the child was living outside the Northern Territory.

In reaching its decision, the court considered the best interests of the child as the paramount concern. It concluded that the child should live with the wife and have the flexibility to relocate with her to various locations in Australia, subject to the husband's employment postings. The court granted shared responsibility for decision-making regarding the child's long-term care and day-to-day welfare to both parents. The contact schedule for the husband was detailed, alternating periods during school terms and holidays, with specific provisions for school holidays and special occasions like birthdays. The court also outlined financial responsibilities for travel and contact, as well as telephone contact requirements and the necessity for the parents to keep each other informed of their contact details and any significant events concerning the child's health.

The final orders of the court mandated the discharge of previous orders, established joint responsibility for the child's care and development, permitted the child to reside with the wife and relocate with her, set out a detailed contact schedule for the husband, and included provisions for financial and communication responsibilities between the parties. The court also addressed the sharing of costs for travel, the responsibility for flight attendant expenses, and the requirement for the husband to maintain weekly telephone contact with the child when living interstate.

Orders

Orders of the court

That the Orders made by the Family Court of Australia at Darwin on

3 August, 2000 be discharged.

That the husband and wife have responsibility for making all decisions concerning the long term care, welfare and development of the child of the marriage B R H born the 3rd of December 1996.

That the said child live with the wife and she be permitted to relocate with him to Victoria or to any other location within Australia to which the wife’s husband, M C A may be posted from time to time.

That each of the parties have responsibility for making decisions concerning the day to day care, welfare and development of the said child on all occasions when the said child is with him or her.

That in the event that the said child is residing outside of the Northern Territory the husband have contact to him as follows:

(a) for the first half of the April school holidays in 2003 and each odd year after and the second half of the April school holidays in 2004 and each even year thereafter;

(b) for the whole of the mid year school holidays;

(c) for the first half of the September school holidays in 2003 and each odd year thereafter and the second half of the September school holidays in 2004 and each even year thereafter;

(d) for the first half of the Christmas school holidays in 2003 and each odd year thereafter and for the second half of the Christmas school holidays in 2004 and each even year thereafter;

The husband and wife shall share equally the cost of air travel between the residential location of the child and Darwin for each contact period as specified in Order 5 hereof other than the mid year contact period, which shall be the sole financial responsibility of the husband.

That in the event that the wife judges it necessary for the child to be accompanied by a flight attendant on any trip taken by air to enable the child to have contact with the husband she shall be solely responsible for all expense related to such accompaniment of the child.

During all periods that the said child is living interstate, the husband shall have telephone contact to the child on a liberal basis but no less than on one occasion each week at 6.00pm on each Sunday Victorian time or 6.00pm local time on each Sunday in whatever location the child is subsequently living.

That in the event that the child is living in Darwin the husband shall have contact with him on the following basis:

(a) from after school on Friday until the commencement of school on the following Monday in each alternate week;

(b) from after school on Tuesday until the commencement of school on the following Wednesday in the other week;

(c) for half all school holidays being the first half in odd ending years and the second half in even ending years and during school holidays Orders 9 (a) and (b) are suspended;

(d) on such other occasions as the parties may mutually agree from time to time;

(e) in the event that the child’s birthday or the husband’s birthday do not fall on a contact period for two hours if they fall on a school day and for four hours if they fall on a weekend.

10.

That each party keep the other advised of their residential address and land line telephone number and inform the other within seven days of any change to such address or land line telephone number.

11.

That if Mother’s Day is on a weekend when the child is living in Darwin pursuant to Order 9 hereof and would be with the husband, the husband shall have contact with the child on the preceding weekend in lieu thereof.

12.

That if Father’s Day is on a weekend when the child is living in Darwin pursuant to Order 9 hereof and would not be with the husband, the husband shall have contact with the child on the preceding weekend in lieu thereof.

13.

The husband and wife each keep the other informed of any major illness or accident suffered by the child when in his or her care and advise the other as soon as is practicable of each treating doctor or like profession attended by the child.

14.

All applications are otherwise dismissed.

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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