Bardot and Thiessen - [2010] FMCAfam 180

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARDOT & THIESSEN

[2010] FMCAfam 180

FAMILY LAW – Child aged 4 years and 2 months – father lives in Victorian Alps – mother lives in Geelong area – parties agree about most matters regarding future parenting of the child – issue in dispute concerns whether child should spend time with father in between holiday visits – family report prepared – whether issue can be decided “on the papers” – less adversarial processes – meaningful relationship – best interests – de facto property proceedings – transfer of proceedings – whether mother’s application properly instituted in South Australia – participating jurisdiction.

Family Law Act 1975, ss.11E, 60B; 60CA; 60CC; 61DA; 65DAA; 79(4); 90SK; 90SM; 90RA; 117

Silas & Barry [2009] FMCAfam 448
Goode & Goode (2006) FLC 93-286

Applicant:

MR BARDOT

Respondent:

MS THIESSEN

File Number:

ADC 2596 of 2009

Judgment of:

Brown FM

Hearing date:

10 February 2010

Date of Last Submission:

10 February 2010

Delivered at:

Adelaide

Delivered on:

26 February 2010

REPRESENTATION

Counsel for the Applicant:

Ms Fuda Duncliffe

Solicitors for the Applicant:

Wendy Botting

Counsel for the Respondent:

Mr Boehm

Solicitors for the Respondent:

Just & Moore Whyte

ORDERS

The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2005 (hereinafter referred to as the child).
The child live with her mother.
The father spend time with the child as follows:
(a)Between 3:00pm on 26 March 2010 and 3:00pm on 5 April 2010;
(b)For the first half of each short Victorian school holiday period commencing at 3:00pm on the last Friday of school and concluding at 3:00pm on the Monday of the second week of each such school holiday period;
(c)In the event Easter does not fall within a school holiday period the father spend time with the child in alternate Easter periods from 3:00pm on Good Friday until 3:00pm on Easter Sunday commencing in 2012.
(d)For half of each end of year Victorian school holiday period so that the father spends the first half of each such holiday in 2010 with the child and each even year thereafter and the mother spends the first half of each such holiday in 2011 and each odd year thereafter with the child provided that the father’s time with the child pursuant to this provision shall commence at 3:00pm Friday and conclude at 3:00pm Monday of such periods or such other time as the parties agree from time to time.
(e)From 3:00pm Friday until 3:00pm Monday on the middle weekend of each Victorian school term;
(f)At any other times and on any other conditions as may be agreed between the parties from time to time.
The father have telephone communication with [X] on each Wednesday and Sunday at 5:30pm with the father to telephone the mother’s home.
The parties exchange the child at the beginning and end of each period referred to in order (3) hereof above at the [M] Police Station or such other location as may…

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 Bardot and Thiessen

Details

AGLC: Bardot and Thiessen [2010] FMCAfam 180
Case: [2010] FMCAfam 180
Decision Date: 26 February 2010

CaseChat Overview and Summary

Bardot and Thiessen involves a dispute between the parents of a child born in 2005. The case was heard by the Family Court of Australia. The primary concern was to determine the arrangements for shared parental responsibility and the specific time the father would spend with the child. The mother sought for the child to live with her, while the father requested a specific visitation schedule.

The legal issues in this case focused on the allocation of parental responsibility and the detailed scheduling of the father's time with the child. The court had to consider the best interests of the child in determining how to balance the parents' rights and responsibilities. This included evaluating the proposed visitation schedule and ensuring that it was practical and in the child's best interest.

The Family Court of Australia decided that the parents would share equal parental responsibility for the child. The child would live with the mother, but the father would have extensive visitation rights. The schedule included specific times during school holidays, weekends, and special occasions, such as Easter. The court also mandated that the father reimburse the mother for toll charges incurred during these visits. The court dismissed the mother's application for de-facto property orders.

The final orders stipulated that the parents would share equal parental responsibility, the child would live with the mother, and the father would have detailed visitation rights. The father was also required to provide financial compensation for toll charges to the mother. Additionally, the court dismissed the mother's application for de-facto property orders.

Orders

Orders of the court

The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2005 (hereinafter referred to as the child).

The child live with her mother.

The father spend time with the child as follows:

(a) Between 3:00pm on 26 March 2010 and 3:00pm on 5 April 2010;

(b) For the first half of each short Victorian school holiday period commencing at 3:00pm on the last Friday of school and concluding at 3:00pm on the Monday of the second week of each such school holiday period;

(c) In the event Easter does not fall within a school holiday period the father spend time with the child in alternate Easter periods from 3:00pm on Good Friday until 3:00pm on Easter Sunday commencing in 2012.

(d) For half of each end of year Victorian school holiday period so that the father spends the first half of each such holiday in 2010 with the child and each even year thereafter and the mother spends the first half of each such holiday in 2011 and each odd year thereafter with the child provided that the father’s time with the child pursuant to this provision shall commence at 3:00pm Friday and conclude at 3:00pm Monday of such periods or such other time as the parties agree from time to time.

(e) From 3:00pm Friday until 3:00pm Monday on the middle weekend of each Victorian school term;

(f) At any other times and on any other conditions as may be agreed between the parties from time to time.

The father have telephone communication with [X] on each Wednesday and Sunday at 5:30pm with the father to telephone the mother’s home.

The parties exchange the child at the beginning and end of each period referred to in order (3) hereof above at the [M] Police Station or such other location as may be agreed between them from time to time.

The father provide the mother with a money order to reimburse her with the necessary toll charges incurred by her to give effect to these orders seven (7) days prior to each period of time the father spends with the child pursuant to these orders with the money order to be deposited in a bank account to be nominated to the father by the mother.

The application and response herein, including the mother’s application for de-facto property orders, be 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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