B and E - [2007] FMCAfam 398

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & E

[2007] FMCAfam 398

FAMILY LAW – Parenting Orders – primary and secondary considerations – best interests of the child – presumption of equal shared parental responsibility – equal time – substantial and significant time – meaningful relationship.

Family Law Act 1975 (Cth), ss.4(1), 60B, 60CC(2)(3)(4)(4A), 61DA(1), 65DAA(1)(2)
Family Law Amendment (Shared Parental Responsibility) Act, 2006 (Cth)
Federal Magistrates Court Rules, 2001 (Cth), r.23.01A5(a)

B & B [2007] FMCAfam 82
Goode & Goode [2006] FamCA 1346
Hungerford & Tank [2007] FamCA 637
M & K [2007] FMCAfam 25
PS & OS [2007] FMCAfam 285

Altobelli FM “The search for wisdom: relocation in the era of shared parental responsibility”, paper delivered at 10^th Australian Family Lawyers Conference, 8-13 June 2007, p.10

Applicant:

G B

Respondent:

R E

File Number:

SYM 4950 of 2002

Judgment of:

Lucev FM

Hearing date:

9 May 2007

Date of Last Submission:

9 May 2007

Delivered at:

Brisbane (by Burnett FM)

Delivered on:

9 July 2007

REPRESENTATION

Applicant:

Mr B in person

Counsel for the Respondent:

Mr R. Slade-Jones

Solicitors for the Respondent:

Schultz Toomey O'Brien

ORDERS

The Father and Mother have equal shared parental responsibility for the Child.
The Child live with the Father.
That the Child spend substantial and significant time and communicate with the Mother as follows:
(a)for the first half of each March/April New South Wales gazetted school holidays;
(b)for all of the June/July New South Wales gazetted school holidays;
(c)for the second half of each September/October New South Wales gazetted school holidays ;
(d)for the first half of the New South Wales gazetted school holiday (the Christmas holiday) commencing in December 2007, December 2009 and December 2011;
(e)for the second half of the New South Wales gazetted school holiday (the Christmas holiday) commencing in December 2008, December 2010 and December 2012;
(f)outside of the school holiday periods referred to above, and subject to giving the Father 28 days notice, for up to four weekends a year, from 9:00am Saturday to 5:00pm Sunday, on any weekend on which the Mother is staying in accommodation within 50 kilometres of the Father’s residence in Sydney but not on any weekend on which the birthday of the Father, the Father’s Partner, the Father’s Partner’s children, or the Father’s Parents, or Father’s Day fall;
(g)by telephone at any reasonable time;
(h)by telephone on the Mother’s birthday and Mother’s Day if these days fall on days on which the Child is not spending time with the Mother, in which case the Father is to ensure that the Child telephones the Mother on that day;
(i)by email at any reasonable time;
(j)by internet chat network at any reasonable time;
(k)by letter at any time;
(l)at any other time, and by any other means, that the Father and Mother agree upon.
That the Child communicate with the Father as follows when the Child is spending time with the Mother:
(a)by telephone at any reasonable time;
(b)by telephone on the Father’s birthday…

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 B and E

Details

AGLC: B and E [2007] FMCAfam 398
Case: [2007] FMCAfam 398
Decision Date: 9 July 2007

CaseChat Overview and Summary

In the matter of B and E, the parties involved were the father and mother of a child, referred to as the Child. The dispute centered around the arrangements for the Child's care and contact, including the allocation of parental responsibility and the specific arrangements for time spent and communication between the Child and each parent. The case was heard by the Family Court of Australia.

The primary legal issues the court needed to address included determining the allocation of parental responsibility between the father and the mother, establishing the primary residence of the Child, and setting out detailed arrangements for the Child's time spent and communication with each parent. The court was also required to consider the need to prevent the Child from being subjected to, or witnessing, abuse, neglect, or family violence.

The court determined that both parents should have equal shared parental responsibility for the Child, and that the Child should primarily reside with the father. The detailed contact arrangements included specific school holiday periods and additional times for communication and visits, ensuring a balanced and structured approach to the Child's time spent with each parent. The court emphasized the importance of maintaining communication between the parents and avoiding any actions that could negatively influence the Child. The court further stipulated that both parents must keep each other informed of any changes in their contact details and allow access to the Child's school and medical records. The court also mandated that both parents must inform each other of any serious medical conditions or incidents affecting the Child.

The final orders of the court outlined specific arrangements for the Child's time spent and communication with each parent, the sharing of parental responsibilities, and the prohibition of any denigration of one parent by the other. The court also set out the means and costs of transport for the Child, and required both parents to maintain open communication regarding the Child's welfare and medical needs.

Orders

Orders of the court

The Father and Mother have equal shared parental responsibility for the Child.

The Child live with the Father.

That the Child spend substantial and significant time and communicate with the Mother as follows:

(a) for the first half of each March/April New South Wales gazetted school holidays;

(b) for all of the June/July New South Wales gazetted school holidays;

(d) for the first half of the New South Wales gazetted school holiday (the Christmas holiday) commencing in December 2007, December 2009 and December 2011;

(e) for the second half of the New South Wales gazetted school holiday (the Christmas holiday) commencing in December 2008, December 2010 and December 2012;

(f) outside of the school holiday periods referred to above, and subject to giving the Father 28 days notice, for up to four weekends a year, from 9:00am Saturday to 5:00pm Sunday, on any weekend on which the Mother is staying in accommodation within 50 kilometres of the Father’s residence in Sydney but not on any weekend on which the birthday of the Father, the Father’s Partner, the Father’s Partner’s children, or the Father’s Parents, or Father’s Day fall;

(g) by telephone at any reasonable time;

(h) by telephone on the Mother’s birthday and Mother’s Day if these days fall on days on which the Child is not spending time with the Mother, in which case the Father is to ensure that the Child telephones the Mother on that day;

(i) by email at any reasonable time;

(j) by internet chat network at any reasonable time;

(k) by letter at any time;

(l) at any other time, and by any other means, that the Father and Mother agree upon.

That the Child communicate with the Father as follows when the Child is spending time with the Mother:

(a) by telephone at any reasonable time;

(b) by telephone on the Father’s birthday and Father’s Day if these days fall on days on which the Child is spending time with the Mother, in which case the Mother is to ensure that the Child telephones the Father on that day;

(d) by internet chat network at any reasonable time;

(e) by letter at any time;

(f) at any other time, and by any other means, that the Mother and Father agree upon.

That the means of, and cost of, transport for the Child to spend time with the Mother are to be agreed upon and shared by the Father and Mother.

That neither party shall denigrate the other to or in the presence of the Child.

That each parent keep the other informed of their present residential address and telephone numbers and keep each other informed of any change of address or telephone numbers within (2) days of any such change.

That each parent be able to contact the school attended by the Child to obtain reports, photographs, newsletters and other information from time to time, and that such authority is further extended to cover all medical practitioners and other health professionals.

That each parent shall inform the other of any medical condition or medication for the Child, or should the Child become seriously ill during the time is spending with that parent and should the Child become seriously ill requiring hospitalization, will forthwith inform the other parent.

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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