Carr and Vincent - [2008] FMCAfam 888

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARR & VINCENT

[2008] FMCAfam 888

FAMILY LAW – Children aged 6½ and 5½ – appropriate arrangements for children to spend time with father pending final hearing – father based in Japan but able to return to Australia regularly – presumption of equal shared parental responsibility – best interests – reasonable practicality – substantial and significant time – whether children should be provided with mobile phones for communication with father.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65DAA

Goode & Goode (2006) FLC 92-286
Cowling v Cowling (1998) FLC 92-801

Applicant:

MR CARR

Respondent:

MS VINCENT

File Number:

ADC 2680 of 2008

Judgment of:

Brown FM

Hearing date:

4 August 2008

Date of Last Submission:

4 August 2008

Delivered at:

Adelaide

Delivered on:

20 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr Noble

Solicitors for the Applicant:

Andersons Solicitors

Counsel for the Respondent:

Ms Leeson

Solicitors for the Respondent:

David Burrell & Co

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibility for the children of their relationship [X] born in 2002 and [Y] born in 2003 (hereinafter referred to as “the children”).
The children live with the mother.
The father spend time with the children as follows:
(a)From 9:00am on 27 September 2008 until 6:00pm on 7 October 2008;
(b)From after school on 8 December 2008 until 6:00pm on 18 December 2008;
(c)From 9:00am on 15 January 2009 until 6:00pm on 26 January 2009; and
(d)At any other times as agreed between the parties on the father giving twenty-one (21) days written notice of the fact that he will be present in Australia to spend time with the children after 1 February 2009.
The father be at liberty to travel interstate with the children during the periods of time set out in order 3(a)-(d) provided he gives the mother a full itinerary of his proposed travel with the children which shall include details of any flights to be taken during the proposed travel and details of where and how the children can be contacted including applicable telephone numbers provided however the periods do not coincide with the children’s attendance at school.
The parties each be restrained and an injunction issue restraining each of them from denigrating the other in the presence or hearing of the children or permitting any other person to do so.
The father be at liberty to attend all functions at the children’s school which are routinely attended by parents.
The father be at liberty to attend all sporting and extra curricular activities which are routinely attended by parents.
The father have the right to obtain copies of each of the children’s school reports, school magazines and newsletters, school photographs (at his own cost) and any other information relating to the children’s attendance at school.
Should a medical emergency arise in relation to either of the children, whilst the children are in the care of one of their parents, then that parent shall notify the other…

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 Carr and Vincent

Details

AGLC: Carr and Vincent [2008] FMCAfam 888
Case: [2008] FMCAfam 888
Decision Date: 20 August 2008

CaseChat Overview and Summary

The Federal Magistrates Court of Australia presided over by Brown FM was tasked with determining interim arrangements for children to spend time with their father, who lived in Japan and had an irregular work schedule. The case involved Mr Carr, the father, and Ms Vincent, the mother, parents to [X] born in 2002 and [Y] born in 2003. The father sought to regularise the periods he could spend with the children while in Australia, arguing that it was in their best interests to have substantial and significant periods of time with him. The mother opposed this, arguing for more defined periods during school holidays and weekends and sought greater notice of the father's intention to visit. The court considered the presumption of equal shared parental responsibility and the best interests of the children, emphasizing the importance of meaningful relationships with both parents. The court concluded that while the father's work schedule was unusual, it was in the children's best interests to have substantial and significant time with him, but balanced this with the need to provide the mother with some quality time during school holidays. The court ordered specific periods for the children to spend with their father and allowed him to travel interstate with them, provided he gave the mother details of his travel plans. It also ordered that the father could communicate with the children by telephone at fixed times each week, without providing them with mobile phones. The court set a final hearing date and allowed for re-listing if any further disputes arose before the final hearing.

Orders