Aaron & Aaron - [2008] FMCAfam 169

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AARON & AARON

[2008] FMCAfam 169

FAMILY LAW – Contravention of previous orders.

FAMILY LAW – Parenting orders – consideration of primary and secondary factors.

Family Law Act 1975 (Cth), ss.60B, 60CC, 65DAA(1)

B & B [2007] FMCAfam 82
Goode v Goode (2006) 206 FLR 212; [2006] FamCA 1346
Hungerford & Tank [2007] FamCA 637
Shelter v Shelter [2007] FMCAfam 898

Applicant:

MR AARON

Respondent:

MS AARON

File Number:

NCC 1795 of 2007

Judgment of:

Lucev FM

Hearing date:

24 September 2007

Date of Last Submission:

24 September 2007

Delivered at:

Sydney

Delivered on:

3 March 2008

REPRESENTATION

Counsel for the Applicant:

Ms Emery

Solicitors for the Applicant:

Linda Emery & Associates

Counsel for the Respondent:

Mr Williamson

Solicitors for the Respondent:

Curtis Grant Irving

ORDERS

The Court declares that the Mother, Ms Aaron, has contravened orders 2, 4(b), 18 and 19 of the orders made by the Gosford Local Court on 26 October 2005, and orders that:
(a)the Mother enrol in and attend a parenting course approved by the Court’s Dispute Resolution Co-ordinator by 30 June 2008; and
(b)that the Children spend time with the Father, Mr Aaron from 5.00pm on the first Saturday to 5.00pm on the last Sunday of the next school holidays.
The Court orders that orders 4 to 14 inclusive of the orders made by the Gosford Local Court on 26 October 2005 be discharged.
Subject to order (1), the Court orders that with effect from 5.00pm on 8 March 2008 the Children, J born in 2001 and D born in 2003:
(a)live with the Father;
(b)spend time with the Mother:
(i)each alternate weekend (commencing Friday 14 March 2008) from 5.00pm Friday to 5.00pm Sunday;
(ii)for the first half of all New South Wales gazetted school holidays in 2008 and each alternate year thereafter;
(iii)for the second half of all New South Wales gazetted school holidays in 2009 and each alternate year thereafter;
provided that the parties may agree on alternative arrangements by written agreement signed by both of them, and further provided that the Children are not to spend any time with Mr C under any circumstances.
The Court orders that the parties consult with respect to arrangements for:
(a)the transport of the Children; and
(b)any sporting arrangements for the Children;
not less than 24 hours prior to any occasion on which the Children are required to be transported, and reach agreement about the manner in which the Children are to be transported, failing which the parent with whom the Children are living or spending time is to arrange to transport the Children by the quickest available public transport, to pay for that transport and to accompany the Children on that transport.

IT IS NOTED that publication of this judgment under the pseudonym Aaron & Aaron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

NCC 1795 of 2007

MR AARON

Applicant

And

MS AARON

Respondent

REASONS…

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 Aaron & Aaron

Details

AGLC: Aaron & Aaron [2008] FMCAfam 169
Case: [2008] FMCAfam 169
Decision Date: 3 March 2008

CaseChat Overview and Summary

In this case, Ms Aaron and Mr Aaron, the parents of two children, J born in 2001 and D born in 2003, came before the court to address disputes concerning parenting arrangements and compliance with previous court orders. The matter was heard in the Family Court of Australia, where the presiding judge had to determine whether the mother had contravened specific orders and to modify existing parenting arrangements accordingly.

The legal issues that the court had to address included whether Ms Aaron had contravened certain orders made by the Gosford Local Court on 26 October 2005, and if so, what the appropriate consequences should be. The court also needed to consider the best interests of the children in determining the most suitable parenting arrangements, taking into account the primary and secondary factors relevant to such decisions. Additionally, the court had to evaluate the implications of any non-compliance by the mother with previous orders on the modification of existing parenting arrangements.

The court found that Ms Aaron had indeed contravened orders 2, 4(b), 18, and 19 of the Gosford Local Court's orders. As a result, the court imposed sanctions, including requiring her to enrol in and attend an approved parenting course and to allow the children to spend time with the father during the upcoming school holidays. The court also discharged certain previous orders and established new parenting arrangements, which included the children primarily residing with the father and spending specified periods with the mother. Furthermore, the court mandated that the parties consult and agree on transport and sporting arrangements for the children, with a fallback provision if they could not reach an agreement.

In summary, the court's final orders declared that Ms Aaron had contravened specific previous orders, mandated her to attend a parenting course, and set new parenting arrangements for the children. The court also provided detailed provisions for the children's time with each parent and the necessary consultations regarding transport and sporting arrangements.

Orders

Orders of the court

The Court declares that the Mother, Ms Aaron, has contravened orders 2, 4(b), 18 and 19 of the orders made by the Gosford Local Court on 26 October 2005, and orders that:

(a) the Mother enrol in and attend a parenting course approved by the Court’s Dispute Resolution Co-ordinator by 30 June 2008; and

(b) that the Children spend time with the Father, Mr Aaron from 5.00pm on the first Saturday to 5.00pm on the last Sunday of the next school holidays.

The Court orders that orders 4 to 14 inclusive of the orders made by the Gosford Local Court on 26 October 2005 be discharged.

Subject to order (1), the Court orders that with effect from 5.00pm on 8 March 2008 the Children, J born in 2001 and D born in 2003:

(a) live with the Father;

(b) spend time with the Mother:

(i) each alternate weekend (commencing Friday 14 March 2008) from 5.00pm Friday to 5.00pm Sunday;

(ii) for the first half of all New South Wales gazetted school holidays in 2008 and each alternate year thereafter;

(iii) for the second half of all New South Wales gazetted school holidays in 2009 and each alternate year thereafter;

provided that the parties may agree on alternative arrangements by written agreement signed by both of them, and further provided that the Children are not to spend any time with Mr C under any circumstances.

The Court orders that the parties consult with respect to arrangements for:

(a) the transport of the Children; and

(b) any sporting arrangements for the Children;

not less than 24 hours prior to any occasion on which the Children are required to be transported, and reach agreement about the manner in which the Children are to be transported, failing which the parent with whom the Children are living or spending time is to arrange to transport the Children by the quickest available public transport, to pay for that transport and to accompany the Children on that transport.

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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