Bray and Constable - [2011] FMCAfam 1397

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRAY & CONSTABLE

[2011] FMCAfam 1397

FAMILY LAW – Children – father working in the United Arab Emirates – UAE not a signatory to the Hague Convention – mother opposed to child travelling overseas to spend time with father – child able to maintain a meaningful relationship with father in Australia – existing injunction against overseas travel maintained.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61C, 64B, 65D

Goode & Goode (2006) FamCA 1346
Mazorski & Albright (2007) 37 FamLR 518
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729

Applicant:

MR BRAY

Respondent:

MS CONSTABLE

File Number:

ADC 3301 of 2007

Judgment of:

Kelly FM

Hearing dates:

1, 2 and 29 August 2011

Date of Last Submission:

29 August 2011

Delivered at:

Adelaide

Delivered on:

16 December 2011

REPRESENTATION

Counsel for the Applicant:

Ms J Basheer

Solicitors for the Applicant:

Adey Lawyers

Counsel for the Respondent:

Mr J Bowler

Solicitors for the Respondent:

Angela Ferdinandy

ORDERS

Paragraph 3(a) of the orders of 7 October 2008 is suspended for the duration of the husband’s employment outside of Australia.
In lieu of the previous orders the child [X] born [in] 2000 shall spend time with the father as follows:
(a)during school terms for one week in every four at times at be agreed between the parties;
(b)for one half of each short school holiday period at times to be agreed between the parties and in default of agreement from 10.00am on the first Saturday until 5.00pm on the Saturday one week following;
(c)for a period of three consecutive weeks during the Christmas school holidays each year (or such longer period as may reflect one half of [X]’s Christmas school holiday period each year) to commence at 10.00am on 27 December 2011 and each alternate year thereafter and at 10.00 am on Christmas Eve in 2012 and each alternate year thereafter;
(d)at such other times as may be agreed between the parties;
PROVIDED THAT any handover times not specified shall take place no later than 9.00pm on the relevant day.
The father shall provide the mother with at least 7 days notice in writing of his intended arrival dates to spend time with [X], together with his address and contact details while [X] is in his care.
The parties do all things necessary to facilitate regular communication between the father and [X] by telephone, Skype, email or any other electronic means.
The mother is at liberty to communicate regularly with [X] by telephone, Skype, email or any other electronic means while [X] is in his father’s care.
The father’s amended Application filed 1 July 2011 is otherwise dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3301 of 2007

MR BRAY

Applicant

And

MS CONSTABLE

Respondent

REASONS FOR JUDGMENT

Introduction

[X] is 11 years old. He…

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 Bray and Constable

Details

AGLC: Bray and Constable [2011] FMCAfam 1397
Case: [2011] FMCAfam 1397
Decision Date: 16 December 2011

CaseChat Overview and Summary

In the Family Court of Australia, the case of Bray and Constable involved the parents of a child born in 2000. The dispute centred on the arrangements for the child's time with his father, given the father's employment that required him to work outside Australia. The matter was heard and determined by the Family Court, which was tasked with making orders concerning the child's living arrangements and contact with both parents.

The legal issues before the court included the suspension of certain orders made previously while the father was employed overseas, the establishment of a new schedule for the child's time with his father, and the facilitation of regular communication between the father and the child. The court needed to balance the father's right to maintain a relationship with his child against the need to provide stability and certainty in the child's life.

The court found that the original orders needed to be modified to accommodate the father's overseas employment. It suspended the previous orders for the duration of his employment outside Australia and set out a new schedule for the child's time with his father, including specific periods during school terms, short school holidays, and Christmas holidays. The court also required the father to provide advance notice of his arrival dates and mandated regular communication between the father and the child. The mother was permitted to maintain regular contact with the child while he was in the father's care.

The court's final orders included the suspension of certain previous orders, a new schedule for the child's time with his father, a requirement for the father to provide advance notice of his visits, and a mandate for regular communication between the father and the child. The father's amended application, filed on 1 July 2011, was dismissed in all other respects.

Orders

Orders of the court

Paragraph 3(a) of the orders of 7 October 2008 is suspended for the duration of the husband’s employment outside of Australia.

In lieu of the previous orders the child [X] born [in] 2000 shall spend time with the father as follows:

(a) during school terms for one week in every four at times at be agreed between the parties;

(b) for one half of each short school holiday period at times to be agreed between the parties and in default of agreement from 10.00am on the first Saturday until 5.00pm on the Saturday one week following;

(c) for a period of three consecutive weeks during the Christmas school holidays each year (or such longer period as may reflect one half of [X]’s Christmas school holiday period each year) to commence at 10.00am on 27 December 2011 and each alternate year thereafter and at 10.00 am on Christmas Eve in 2012 and each alternate year thereafter;

(d) at such other times as may be agreed between the parties;

PROVIDED THAT any handover times not specified shall take place no later than 9.00pm on the relevant day.

The father shall provide the mother with at least 7 days notice in writing of his intended arrival dates to spend time with [X], together with his address and contact details while [X] is in his care.

The parties do all things necessary to facilitate regular communication between the father and [X] by telephone, Skype, email or any other electronic means.

The mother is at liberty to communicate regularly with [X] by telephone, Skype, email or any other electronic means while [X] is in his father’s care.

The father’s amended Application filed 1 July 2011 is 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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