BWR and AMV - [2004] FMCAfam 671

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BWR & AMV

[2004] FMCAfam 671

FAMILY LAW – Children – contact – application to vary consent orders – whether test in Rice & Asplund (1978) 6 Fam L 570; (1979) FLC 90-725 has been met – shared parenting – whether a contact order should be made in favour of the paternal grandparents who normally live in New Zealand – name of child – whether child’s surname should be changed – telephone contact – whether installation of a webcam necessary or appropriate – child aged 5 years.

Family Law Act 1975 (Cth), ss.60B; 61B; 61C; 65C; 61D; 65D; 65E; 68F(2)
Family Law Reform Act 1995 (Cth)
Child Support (Assessment) Act 1989 (Cth), ss.116; 117

B & A [2004] FMCA fam 473
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
H & K [2004] FMCAfam 140
Hayman & Hayman (1976) FLC 90-140
Freeman v Freeman (1987) FLC 91-857
Bennett v Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191
King and Finneran (2001) FLC 93-079
D & Y (1995) 18 Fam 662; FLC 92-581
S & C [2003] FMCAfam 417
Chapman and Palmer (1978) 4 Fam LR 462; FLC 90-510
Beach and Stemmler (1979) FLC 90-692
Mahony and McKenzie (1993) FLC 92-408
Flanagan & Handcock (2001) FLC 93-074
Stevens v Lee (1991) FLC 92-201
Bright and Bright v Bright and Mackley (1995) FLC 92-570
In the Marriage of Talbot (1993) 16 Fam LR 910; FLC 92-397
In the Marriage of Harrison and Woollard (1995) 18 Fam LR 788; FLC 92-598
B and B Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755
In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324; FLC 92-778
T v N [2001] FMCAfam 222; (2004) 31 Fam LR 281

Applicant:

W R B

Respondent:

M V A

File No:

PAM 3267 of 2004

Delivered on:

24 November 2004

Delivered at:

Sydney

Hearing date:

29 September and 8 October 2004

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant:

Appeared on his own behalf

Counsel for the Respondent:

Mr Thistleton (direct brief)

ORDERS

The applicant and the respondent shall each have sole responsibility for the management of the day-to-day issues surrounding the care, welfare and development of the child B A born 9 April 1999 during those periods that B is in their respective care.
The applicant is to be recorded on the birth certificate of the child B A born 9 April 1999, as the father. For the purposes of implementation of this order the applicant must provide the following documents to the respondent:
(a)the signed application to register him as the father of the child B; and
(b)a cheque in favour of the Registrar of Births Deaths and Marriages for the prescribed fee of $85.00 and postage of $5.00 (total $90.00) within 28 days from the date of these orders.
The respondent must lodge the documentation referred to in Order 2 for registration within 28 days from receipt of the applicant’s cheque…

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 BWR and AMV

Details

AGLC: BWR and AMV [2004] FMCAfam 671
Case: [2004] FMCAfam 671
Decision Date: 24 November 2004

CaseChat Overview and Summary

In the Family Court of Australia, the case of BWR and AMV involved a dispute between the parents concerning the care, welfare, and development of their child, B A, born on 9 April 1999. The primary legal issues before the court were the allocation of responsibilities for the child's day-to-day care between the parents and the modification of existing parenting orders, including contact arrangements and financial contributions towards the child’s education. Additionally, the court had to address the registration of the applicant as the father on the child's birth certificate and the calculation of child support.

The court ruled that both parents should have sole responsibility for the child's care during the periods when the child is in their respective care. It was also decided that the applicant should be recorded on the birth certificate as the father, with specific instructions given for the submission of necessary documents to the Registrar of Births, Deaths and Marriages. The court varied existing parenting orders to adjust the contact arrangements and the financial contribution towards the child's school fees. It determined that the father should pay half of the school fees for the child's secondary education each year. The court dismissed all other applications except for the costs, which were to be borne by the parties as directed, and removed the proceeding from the list of cases awaiting finalisation.

These orders reflect the court's efforts to balance the needs and rights of both parents while ensuring the best interests of the child are prioritised. The modifications to the existing orders demonstrate an adjustment to the parents' responsibilities and financial obligations in light of the child's educational needs and the parents' respective capabilities.

Orders

Orders of the court

The applicant and the respondent shall each have sole responsibility for the management of the day-to-day issues surrounding the care, welfare and development of the child B A born 9 April 1999 during those periods that B is in their respective care.

The applicant is to be recorded on the birth certificate of the child B A born 9 April 1999, as the father. For the purposes of implementation of this order the applicant must provide the following documents to the respondent:

(a) the signed application to register him as the father of the child B; and

(b) a cheque in favour of the Registrar of Births Deaths and Marriages for the prescribed fee of $85.00 and postage of $5.00 (total $90.00) within 28 days from the date of these orders.

The respondent must lodge the documentation referred to in Order 2 for registration within 28 days from receipt of the applicant’s cheque for fees.

Order 2.1 made by consent on 25 September 2003 is varied so as to read:

From 3.00 p.m. Friday 3 October 2003 until 8.30 a.m. Monday

6 October 2003, and in the event that Monday is a public holiday until 8.30 a.m. on the following day being Tuesday and each alternate weekend thereafter from 1/1/04 other than during school holidays and alternate contact weekends shall recommence on the first weekend of the school term in those years when the father has exercised contact in the first half of the school holiday period and the second weekend in those years when the father has exercised contact in the second half of the school holiday period.

Order 2.4.1 made on 25 September 2003 is discharged.

The orders made on 25 September 2003 are varied by adding this order:

For the purposes of these Orders;

(a) School holidays are deemed to commence on the Saturday immediately school term concludes;

(b) School holidays are deemed to conclude on the day immediately before the first day the child B is required to attend school at the commencement of each school term;

(c) A day designated by the school attended by the child as a “pupil free day” is not a day when the child is required to attend school;

(d) Contact for the first half of the Spring, Autumn and Winter school holiday periods will commence at 9.00 a.m. on the Saturday immediately after school term concludes and will conclude at 5.00 p.m. on the middle Saturday of the said school holiday period; and

(e) Contact for the second half of the Spring, Autumn and Winter school holiday periods will commence at 5.00 p.m. on the middle Saturday of the school holiday period and will conclude at

5.00 p.m. on the day immediately before the child is required to attend school at the commencement of the next school term.

The child support assessment for the child B A born

9 April 1999 payable by the father is departed from so as to provide that the father is to pay one half of the school fees required by the C C G School for the tuition of the said child for the school year commencing 2005 and each year thereafter until the child concludes his secondary education in addition to the amount provided by the administrative assessment of child support otherwise due and payable.

All documents produced on subpoena and all exhibits are to be returned after the expiration of one month from the date of these Orders.

10.

All other applications save as to costs are dismissed and this proceeding is removed from the list of cases awaiting finalisation.

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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