Baldwin and Baldwin - [2010] FMCAfam 1524

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BALDWIN & BALDWIN

[2010] FMCAfam 1524

FAMILY LAW – Parenting – relocation sought by wife – consideration of applicable principles – ESPR sought by both parents and appropriate orders for the Father to spend significant and substantial time with the children.

Family Law Act 1975, ss.60B(1)(a) & (2), 60CA, 60CC (2) & (3), 61DA (4), 65DAA(1), (2), (3) & (5), 68F(2)

Pitken v Hendry (2008) FamCA 186
Taylor & Barker [2007] Fam CA 1246
Sampson & Hartnett (No.10) [2007] FamCA 1365
Goldrick & Goldrick [2007] FamCA 1260
Goode & Goode [2006] FLC 93-286
Secretary, Department of Health and Community Services v. JMB & SMB (1992) 175 CLR 218 at 270-2
CDJ & VAJ (1998) 197 CLR 172 at 219
AIF v AMS (1999) 24 FamLR 756
U v U (2002) 211 CLR 238
MRR & GR [2010] HCA4 (3 March 2010)

Applicant:

MR BALDWIN

Respondent:

MS BALDWIN

File Number:

BRC 11763 of 2009

Judgment of:

Coker FM

Hearing date:

15 July 2010

Date of Last Submission:

15 July 2010

Delivered at:

Brisbane

Delivered on:

16 July 2010

REPRESENTATION

Counsel for the Applicant:

Ms Carmody

Solicitors for the Applicant:

Parker Family Law

Counsel for the Respondent:

Mr Alexander

Solicitors for the Respondent:

Granite Belt Law

That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children [X] born [in] 2005 and [Y] born [in] 2007 and [Z] born [in] 2008 (“the children”) including but not limited to:-
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:-
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 1:
(a)the Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;
(b)the Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
That the children live with the Mother.
That the children spend time with the Father at all reasonable times as agreed between the parties but failing agreement as follows:-
(a)Whilst the Father lives in the Brisbane metropolitan area and the Mother in the [S] area:-
(i)on each weekend that the Father does not have to work (rostered [omitted] and recreational leave on weekends) from 5.00pm Friday until Sunday at 4.00pm, on the proviso that the Father have no more than three (3) weekends with the children in every…

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 Baldwin and Baldwin

Details

AGLC: Baldwin and Baldwin [2010] FMCAfam 1524
Case: [2010] FMCAfam 1524
Decision Date: 16 July 2010

CaseChat Overview and Summary

This proceeding relates to issues concerning the parenting of three young children: [X], born [in] 2005, therefore five years of age; [Y], born [in] 2007, therefore three years of age; and [Z], born [in] 2008, and therefore not yet quite two years of age. The children are the children of the relationship between Mr Baldwin, the father, and Ms Laine, the mother. The parties were in a relationship for about five years. They commenced to reside together in May 2004 and married in 2004. They separated on 19 July 2009. The father sought orders in relation to the children living with him, but then went on to propose that there should be equal shared parental responsibility, and sought a restraint to be placed upon the mother such that she not be able to relocate with the children to the [S] area, and that the children are to reside within a 40 kilometre radius of [R]. The father also proposed specific arrangements in relation to the mother spending time with the children. The mother proposed that the children should live with her and the father as agreed between the parents, but failing agreement went on to particularise what the proposal was in relation to the time to be spent by the father with the children. The mother also proposed that there should be equal shared parental responsibility for major long-term issues in relation to the decisions to be made with regard to the care of the children. The court considered the evidence of the parties and of the maternal and paternal grandmothers. The court found that the father was a devoted father, who had been involved in every respect in the parenting of the children. The court found that the mother was also a devoted mother, but that she had not recognised the importance of the father’s involvement in the children’s lives. The court found that the mother’s attitude in relation to certain issues with regard to shared parenting and equal shared parental responsibility was troubling. The court also found that the mother’s unilateral act in relation to removal of herself and the children, establishment in [S] and a failure to communicate with the father in relation to such issues was of greater concern. The court found that the mother needed to be far more aligned to a recognition that she did not make every decision in relation to these children without consultation with the father, and that to fail to do so, was a failure of her to meet the responsibilities that exist in relation to the children. The court found that the mother’s reliance upon the orders of 19 April 2010 with regard to the giving of seven days’ notice was simply not child-focussed. It was a technical stance, and it was one that did the mother no credit whatsoever in relation to assisting the court with regard to a determination of what might be the most appropriate arrangement to be put in place with regard to these children. The court found that the position and stance of the mother with regard to the father suddenly, because of his work, having additional opportunities to spend time with the children, and simply being fobbed off, because either seven days’ notice was not given, or that she had made other plans, or that the children had other obligations, fails to recognise that whatever those other plans might have been, or whatever those other obligations might be with regard to the children and friends and other issues, is of far less significance than the importance to these children, and to their development as proper, well-adjusted young people and young adults in time, as a result of their meaningful relationship with their father. The court found that it was appropriate to significantly modify any orders with regard to time that might be notified by the father in relation to additional opportunities to spend time with the children, so as to ensure that there is a recognition of the far more significant and important role of the father in the children’s lives than of other arrangements that might necessarily be made with regard to these children. The court found that it was in the best interests of the children that there be equal shared parental responsibility. The court found that it was appropriate to make orders that the children should live with the mother, but that the father should spend substantial and significant time with the children. The court found that it was appropriate to make orders for the father to spend time with the children on each weekend that the father does not have to work, from 5 pm Friday until Sunday at 4 pm, on the proviso that the father have no more than three (3) weekends with the children in every five (5) week block and not more than two (2) in a row, with changeover to take place at the [omitted] Service Station at [A]. The father may elect to spend time with the children on weekdays that the father is not working, with such time to take place in [S], with the Father to provide the Mother seven (7) days written notice of his intention to spend time with the children. The father will provide to the mother a copy of his work roster and thereafter provide any subsequent roster as soon as is practicable and will give three (3) days notice of any recreational leave granted on weekends. The court found that it was appropriate to make orders that the mother forthwith commence psychotherapy with a psychologist in the [S] area for treatment of post-traumatic stress disorder, and in particular her fears of safety and cognition of abuse potential. The court made orders in relation to the mother providing a copy of the Family Report of Mr C dated 14 June 2010 to her psychologist, and that each parent communicate with the other parent respectfully with the use of a communication book which is to travel between the households with the children and otherwise the parties can communicate in cases of urgency via email, text message or other appropriate means. The court made orders in relation to the parents keeping each other informed of their residential address and landline contact telephone number, keeping the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorising those practitioners to provide the other parent with information that they are lawfully able to provide about the children, and informing the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. The court made orders in relation to the parents authorising the schools or day care centres attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost). The court made orders in relation to the mother complying with any and all recommendations concerning medication or treatment as may be issued by her treating general practitioner or psychologist. The court made orders in relation to the parents being restrained and an injunction issue restraining the Mother and Father from denigrating the other parent to or in the presence of the children or allowing the children to remain in the presence of any person acting in such a manner. The court made orders in relation to the outstanding property proceedings in this matter being adjourned to 9:30am on 25 August 2010 for mention in the Federal Magistrates Court of Australia at Brisbane.

Orders