FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEADLE & BEADLE | [2008] FMCAfam 1283 |
| FAMILY LAW – Parenting orders – application of s.61DA(1) presumption – where one parent has relocated interstate – equal time found to be in child’s best interests – parent ordered to relocate with child. FAMILY LAW – Parenting orders – unacceptable risk of harm – tendency evidence – principles discussed – use of tendency evidence to make finding of unacceptable risk of harm – where allegation is made against a person who is not a party to the proceedings. EVIDENCE – Tendency evidence – use in parenting proceedings where there is an allegation of unacceptable risk of harm. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 65D, 65DAA, 69ZT Evidence Act 1995, ss.97, 130 |
| CDJ v VAJ (1998) 197 CLR 172 Morgan & Miles [2007] FamCA 1230 D & SV (2003) FLC 93-137 Taylor & Barker [2007] FamCA 1246 Sampson & Hartnett [2007] FamCA 1365 Pender & Haywood [2007] FamCA 1526 Briginshaw v Briginshaw (1938) 60 CLR 336 WK & SR (1997) FLC 92-787 M v M (1988) 166 CLR 69; FLC 91-979 B v B (1988) FLC 91-957 W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129 Re W (Sex Abuse: Standard of Proof) [2004] FLC 93-192 Jacarana Pty Ltd v Auto-Bake Pty Ltd [1999] FCA 417 Napier v Hepburn [2006] Fam CA 1316 |
| Applicant: | MR BEADLE |
| Respondent: | MS BEADLE |
| File Number: | BRC 781 of 2007 |
| Judgment of: | Wilson FM |
| Hearing dates: | 3, 4 & 5 December 2007 |
| Date of Last Submission: | 31 January 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 5 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Catt |
| Solicitors for the Applicant: | J Reddy & Co |
| Counsel for the Respondent: | Mr Crisp |
| Solicitors for the Respondent: | Hartleys Lawyers |
ORDERS
That within 42 days of the date of these orders, the mother relocate with the child [M], born in 2005 so as to reside within a radius of
20 kilometres of the father’s residence, or at such other place as the parties both agree.
That upon the mother relocating, the child live with and spend time and communicate with each parent as follows:
(a)In week one of a fortnightly cycle with the father:
(i)Until the child commences formal schooling from 5:00 pm Friday until 5:00 on the following Friday;
(ii)Once the child commences formal schooling from the conclusion of school on Friday until the commencement of school on the following Friday;
(b)In week two of a fortnightly cycle with the mother:
(i)Until the child commences formal schooling from 5:00 pm Friday until 5:00 on the following Friday;
(ii)Once the child commences formal schooling from the conclusion of school on Friday until the commencement of school on the following Friday;
(c)With the father:
(i)From 26 December 2008 until 2 January 2009 and each alternate year thereafter;
(ii)From 19 December 2009 until 26 December 2009 and each alternate year thereafter.
(d)With the mother:
(i)From 19…
Continue reading Beadle & Beadle
Sign in free to access the full text
- AGLC
- Beadle & Beadle [2008] FMCAfam 1283
- Case
- [2008] FMCAfam 1283
- Decision Date
CaseChat Overview and Summary
The court's reasoning involved a detailed examination of the evidence presented, particularly the tendency evidence regarding the risk of harm if the child relocated with the father. The court emphasised the importance of assessing the best interests of the child, taking into account the presumption of equal shared parenting time. It found that the child's best interests were served by equal time arrangements, and therefore ordered the mother to relocate within a 20-kilometre radius of the father's residence. The court also considered the use of tendency evidence in determining the risk of harm, noting that such evidence could be relevant where allegations were made against a non-party. The court concluded that the child's best interests were best served by the proposed relocation and equal time arrangements.
The court issued detailed orders regarding the child's residence, parenting time, communication, and other aspects of care, including provisions for changeovers, notification of medical emergencies, and restrictions on rebuking or belittling the other parent. It also granted the father an injunction to prevent the mother from relocating the child to a distance greater than 20 kilometres without his consent or a court order. The final orders reflected a balanced approach, recognising the importance of both parents in the child's life while ensuring that the child's best interests were paramount.
Orders
Orders of the court
1.
That within 42 days of the date of these orders, the mother relocate with the child [M], born in 2005 so as to reside within a radius of
20 kilometres of the father’s residence, or at such other place as the parties both agree.
2.
That upon the mother relocating, the child live with and spend time and communicate with each parent as follows:
(a) In week one of a fortnightly cycle with the father:
(i) Until the child commences formal schooling from 5:00 pm Friday until 5:00 on the following Friday;
(ii) Once the child commences formal schooling from the conclusion of school on Friday until the commencement of school on the following Friday;
(b) In week two of a fortnightly cycle with the mother:
(i) Until the child commences formal schooling from 5:00 pm Friday until 5:00 on the following Friday;
(ii) Once the child commences formal schooling from the conclusion of school on Friday until the commencement of school on the following Friday;
(c) With the father:
(i) From 26 December 2008 until 2 January 2009 and each alternate year thereafter;
(ii) From 19 December 2009 until 26 December 2009 and each alternate year thereafter.
(d) With the mother:
(i) From 19 December 2008 until 26 December 2008 and each alternate year thereafter.
(ii) From 26 December 2009 until 2 January 2010 and each alternate year thereafter.
(e) On each of the parent’s birthdays, with that parent from 9 am until 6 pm on that day if a weekend or a non-school day, or from the conclusion of school until 7:00 pm on that day;
(f) On the child’s birthday, with the parent who is not then caring for the child from 3:00 pm until 7:00 pm;
(g) On Mother’s Day, if the child is otherwise in the father’s care – with the mother from 9 am until 6 pm;
(h) On Father’s Day, if the child is otherwise in the mother’s care – with the father from 9 am until 6 pm;
(i) By telephone at all reasonable times.
3.
For the purposes of these orders, where changeover is not effected at the child’s school, it shall be effected by the parent in whose care the child then is delivering the child to the residence of the other parent.
4.
That each party shall notify the other of any significant accident, illness, hospitalisation or other medical emergency involving or affecting the child as soon as practicable.
5.
That both parties be at liberty to attend any school, sporting or extra-curricular activity or event involving or in relation to the child.
6.
That this order is to operate as authority for any professional care provider for the child (whether a school, doctor, hospital or otherwise) to release any information, including school, medical or any other professional or development reports of the child, to both parties.
7.
That each party shall keep the other advised of their current residential address and phone number, work telephone number, e-mail address, and mobile telephone number and advise the other of any change to those details within 48 hours of any change.
8.
Each party is hereby restrained by injunction from rebuking, belittling and denigrating the other in the presence or hearing of the child and allowing any other person to do so.
9.
That the mother be restrained from relocating the residence of the child to a distance greater than 20 kilometres from the father’s current residential address, without the written consent of the father, or an order of the court first obtained.
10.
That until the mother relocates in accordance with order 1, the orders made by the court on 13 July 2007 continue in force unless specifically varied by these orders.
11.
The parties have equal shared parental responsibility for the child.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.