C and O'N - [2003] FMCAfam 154

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & O'N

[2003] FMCAfam 154

FAMILY LAW – Children – residence – whether mother poses a risk to the children – shared parenting in the interests of the children, notwithstanding differences between the parents.

Family Law Act 1975, ss.60B, 60B(2)(b), 65DA(2), 65E, 68F(2)

Applicant:

L C

Respondent:

T O'N

File No:

DGM 2070 of 2002

Delivered on:

7 May 2003

Delivered at:

Melbourne

Hearing Dates:

1 & 2 May 2003

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:	Ms C appeared in person
Solicitor for the Applicant:	Ms C appeared in person
Counsel for the Respondent:	Mr O'N appeared in person
Solicitor for the Respondent:	Mr O'N appeared in person

ORDERS

THAT the mother and father retain joint responsibility for the long-term care, welfare and development of the children of the parties,
C A O'N, born the 11 May 1991, and P H O'N, born the 14 June 1994.
THAT the children live with the mother from 7:00pm Sunday to 7:00pm Sunday the following week and when the children are living with her she have the day to day responsibility for their care, welfare and development.
THAT the children live with the father in each other week from 7:00pm Sunday until 7:00pm the following Sunday, and when the children are with him he have the responsibility for their day to day care, welfare and development.
THAT the children live with the mother and father respectively for one half of each of the school term holidays and the Christmas school holidays at times to be agreed.
THAT the children spend time with each of the parents on Christmas Day as agreed.
THAT the children live with the parties at such other times as are agreed.
THAT the parties attend upon J S with the children, at a time to be fixed, to discuss and explain to the children the reasons for and effect of these orders, and how they are to be best implemented in the interests of the children.
THAT pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are out in Annexure A and these particulars are included in these orders.
THAT the Application filed 12 September 2002 otherwise be dismissed and removed from the List of Cases waiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGM 2070 of 2002

L C

Applicant

And

T O'N

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves the residence of the two children of the parties

C A O'N born 11 May 1991 (C) and P H O'N born 14 June 1994 (P).

C is now aged nearly 12 and P is nearly 9.

Short background

The parties commenced living together in about 1987. They have never married. The relationship has been deteriorating for some time but both parties agree that it effectively came to an end in June…

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 C and O'N

Details

AGLC: C and O'N [2003] FMCAfam 154
Case: [2003] FMCAfam 154
Decision Date: 7 May 2003

CaseChat Overview and Summary

The case of C and O'N involved the parents, C and O'N, who were engaged in a dispute concerning the care, welfare, and development of their two children, born in 1991 and 1994. The matter was heard in the Family Court of Australia. The primary concern was to establish a parenting arrangement that would best serve the interests of the children, considering the parents' ability to provide care and the children's welfare. The court was tasked with determining the allocation of parental responsibilities and the living arrangements that would support the children's overall well-being.

The legal issues before the court encompassed the determination of joint responsibility for the children's long-term care and the establishment of a parenting schedule that balanced the parents' roles. The court had to consider the statutory guidelines under the Family Law Act 1975, ensuring that the orders made would reflect the children's needs and the parents' capacity to provide for them. The court also needed to address the implications of the parents' separation on the children's routine and stability.

In delivering the judgment, the court recognised the importance of both parents being actively involved in the children's lives, while also acknowledging the need for a structured and consistent environment. The court concluded that a shared care arrangement would be in the children's best interests, with a weekly rotation between the parents. The court outlined specific times for the children to reside with each parent and established guidelines for school holiday periods and special occasions. The orders also included provisions for the parents to discuss the arrangements with the children to ensure they understand the reasons behind the court's decisions.

The final orders mandated that the parents retain joint responsibility for the children's care and set forth a detailed schedule for their living arrangements. The court specified times for the children to live with each parent, allocated responsibilities for day-to-day care, and detailed holiday and special occasion arrangements. The parents were also directed to attend a session with a family consultant to explain the court's decisions to the children. The court emphasised the importance of adherence to the orders and outlined potential consequences for non-compliance under the Family Law Act 1975.

Orders

Orders of the court

THAT the mother and father retain joint responsibility for the long-term care, welfare and development of the children of the parties,

C A O'N, born the 11 May 1991, and P H O'N, born the 14 June 1994.

THAT the children live with the mother from 7:00pm Sunday to 7:00pm Sunday the following week and when the children are living with her she have the day to day responsibility for their care, welfare and development.

THAT the children live with the father in each other week from 7:00pm Sunday until 7:00pm the following Sunday, and when the children are with him he have the responsibility for their day to day care, welfare and development.

THAT the children live with the mother and father respectively for one half of each of the school term holidays and the Christmas school holidays at times to be agreed.

THAT the children spend time with each of the parents on Christmas Day as agreed.

THAT the children live with the parties at such other times as are agreed.

THAT the parties attend upon J S with the children, at a time to be fixed, to discuss and explain to the children the reasons for and effect of these orders, and how they are to be best implemented in the interests of the children.

THAT pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are out in Annexure A and these particulars are included in these orders.

THAT the Application filed 12 September 2002 otherwise be dismissed and removed from the List of Cases waiting 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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