A and S - [2004] FMCAfam 563

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A & S

[2004] FMCAfam 563

FAMILY LAW – Children – residence – contact – competing applications – contested residence – separation of siblings – allegations of abuse by another child – best interests of children – child suffering severe behavioural problems.

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

A & A [2003] FMCAfam 420
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
M v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; FLC 91-979
Briginshaw v Briginshaw (1938) 60 CLR 336

Applicant:

M T A

Respondent:

L K A S

File No:

PAM 3754 of 2001

Delivered on:

19 October 2004

Delivered at:

Sydney

Hearing dates:

7, 8 & 14 April 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Lansley Lawyers

Counsel for the Respondent:

Ms Snelling

Solicitors for the Respondent:

R.J Russell Solicitors

Counsel for the Children’s Representative:

Legal Aid Commission of New South Wales

ORDERS

That the child of the marriage O S A born 24 July 1993 is to live with the Applicant father.
That the children B A A born 22 April 1996 and E J A born 17 July 1998 are to live with the Respondent mother.
That the child O is to have contact with the mother as follows:
(a)for three (3) weekends out of five (5) according to the father’s shift roster from 5.00 p.m. on the Friday until 5.00 p.m. on the Sunday extending to 5.00 p.m. on the Monday if the Monday is a public holiday;
(b)for the whole of the Autumn, Winter and Spring school holiday period in each year;
(c)each alternate Christmas period commencing at 5.00 pm. on Christmas Eve and concluding at 10.00 a.m. on Boxing Day in 2005 and each alternate year thereafter;
(d)for the weekend that includes Mother’s day in each year; and
(e)For the balance of the Christmas/January school holiday period in each year less any period of two weeks when the children B and E are exercising contact with the father.
That the children B and E are to have contact with the father as follows:
(a)for two (2) weekends out of five (5) according to the father’s shift roster and coinciding with weekends that the child O is at the father’s house;
(b)for two (2) continuous periods of two (2) weeks in each year, totalling four (4) weeks in all, PROVIDED THAT the father notifies the mother no less than one month beforehand of his intention to exercise that contact period AND ALSO PROVIDED THAT the child O simultaneously spends those periods with the father;
(c)for the weekend that includes Father’s Day in each year; and
(d)Each alternate Christmas period commencing at 5.00 p.m. on Christmas Eve and concluding at 10.00 a.m. on Boxing Day in 2004 and each alternate year thereafter.
That the parties are to do all things required to attend the Keeping Contact Program or another parenting after separation program conducted…

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 S

Details

AGLC: A and S [2004] FMCAfam 563
Case: [2004] FMCAfam 563
Decision Date: 19 October 2004

CaseChat Overview and Summary

The case of A and S involved a dispute between the Applicant father and the Respondent mother regarding the custody and care of their three children. The Family Court of Australia was tasked with determining the living arrangements and contact schedules for the children, O, B, and E, born in 1993, 1996, and 1998, respectively. The court was also required to address the parents' responsibilities for the children's care, welfare, and development.

The primary legal issues before the court included determining the best living arrangements for each child, establishing a contact schedule for each parent with the children, and outlining the responsibilities of each parent regarding the children's education, medical care, and overall welfare. The court had to balance the best interests of the children with the preferences and abilities of both parents.

In reaching its decision, the court considered the evidence presented regarding the parents' ability to care for the children and the children's relationships with each parent. The court determined that it was in the best interest of the children to live primarily with their mother, except for the eldest child, O, who was to live with the father. The court established a detailed contact schedule for the father with the children, including specific weekends and holiday periods. The court also mandated that both parents attend a parenting program and emphasised the importance of communication and cooperation between the parents regarding the children's welfare and education.

The court's orders included specific arrangements for the children's living situations, contact schedules, and the parents' responsibilities. The eldest child was to live with the father, while the two younger children were to live with the mother. The father was granted extensive contact with the children, including weekends, school holidays, and specific holiday periods. Both parents were required to participate in a parenting program, and the mother was instructed to consult a clinical psychologist regarding the eldest child's welfare. The court also outlined the parents' responsibilities for the children's education, medical care, and general welfare, emphasising joint responsibility and cooperation.

Orders

Orders of the court

That the child of the marriage O S A born 24 July 1993 is to live with the Applicant father.

That the children B A A born 22 April 1996 and E J A born 17 July 1998 are to live with the Respondent mother.

That the child O is to have contact with the mother as follows:

(a) for three (3) weekends out of five (5) according to the father’s shift roster from 5.00 p.m. on the Friday until 5.00 p.m. on the Sunday extending to 5.00 p.m. on the Monday if the Monday is a public holiday;

(b) for the whole of the Autumn, Winter and Spring school holiday period in each year;

(c) each alternate Christmas period commencing at 5.00 pm. on Christmas Eve and concluding at 10.00 a.m. on Boxing Day in 2005 and each alternate year thereafter;

(d) for the weekend that includes Mother’s day in each year; and

(e) For the balance of the Christmas/January school holiday period in each year less any period of two weeks when the children B and E are exercising contact with the father.

That the children B and E are to have contact with the father as follows:

(a) for two (2) weekends out of five (5) according to the father’s shift roster and coinciding with weekends that the child O is at the father’s house;

(b) for two (2) continuous periods of two (2) weeks in each year, totalling four (4) weeks in all, PROVIDED THAT the father notifies the mother no less than one month beforehand of his intention to exercise that contact period AND ALSO PROVIDED THAT the child O simultaneously spends those periods with the father;

(d) Each alternate Christmas period commencing at 5.00 p.m. on Christmas Eve and concluding at 10.00 a.m. on Boxing Day in 2004 and each alternate year thereafter.

That the parties are to do all things required to attend the Keeping Contact Program or another parenting after separation program conducted by Unifam and follow all reasonable directions of the convenor of that program.

That the mother arrange an appointment with K P, clinical psychologist, within one month from the date of these Orders for the purpose of discussing the care, welfare and development of the child O.

The father is to do all things necessary to ensure that another adult is present at all times when the children B and E are in his company for contact.

The parties are to retain joint responsibility for the long term care, welfare and development of the children.

Each party is to be responsible for the day to day care, welfare and development of the children at all times when the children are in the care of that party.

10.

The parties are to inform each other as soon as is reasonably possible of any medical emergency or any hospitalisation or any medical specialist’s appointment concerning any of the children.

11.

Each party is to authorise the principal of the school attended by all or any of the children to provide to the other party on a regular basis copies of all school reports, bulletins, newsletters, information about school photographs and any other information normally provided by the school to parents of children attending that school.

12.

Each party is permitted to attend the school at which each of the children is currently enrolled as a pupil for the purpose of any parent-teacher interview, school concert, prize-giving, sports day, swimming carnival or any other activity normally attended by parents of children attending that school, subject to the parties complying with all reasonable directions of the principal or deputy principal of that school.

13.

The appointment of the Children’s Representative is extended for a period of one (1) month from the date of these Orders.

14.

The Children’s Representative must forward a sealed copy of these Orders to the Principal or Principals of the school or schools attended by the children within one (1) month of the date of these Orders, together with a letter drawing attention to Orders 11 and 12.

15.

Any application for an order for costs must be made within two (2) months.

16.

Subject to Order 15, the Application is removed from the list of cases awaiting finalisation.

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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