Clement and Clement - [2010] FMCAfam 1143

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLEMENT & CLEMENT

[2010] FMCAfam 1143

FAMILY LAW – Parenting – interim – Rice & Asplund – change to school holiday time – final orders exist less than 12 months.

Family Law Act 1975, ss.60CA, 60CC

Goode &Goode (2006) FLC 93-286
Marsden & Winch (2009) FamCAFC 152
Rice & Asplund (1978) 6 Fam LR 570
SPL & PLC (2008) FamCAFC 16

Applicant:

MR CLEMENT

Respondent:

MS CLEMENT

File Number:

PAC 2925 of 2008

Judgment of:

Monahan FM

Hearing date:

7 September 2010

Date of Last Submission:

7 September 2010

Delivered at:

Sydney

Delivered on:

7 September 2010

REPRESENTATION

Counsel for the Applicant:

None

Solicitors for the Applicant:

Argyle Lawyers Pty Ltd

Counsel for the Respondent:

None

Solicitors for the Respondent:

Watts McCray Lawyers

ORDERS

All extant applications be adjourned to this Court on 11 November 2010 at 9:30am for mention.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

Paragraph 4(b) of the Orders made 20 November 2009 (“the 2009 Orders”) be varied to enable [X] born [in] 2002 (“her”) to spend time with the Applicant by reading as follows:
b. During the short school holidays:
(i)in 2011 and each alternate year thereafter, from 5:00pm on the last day of term until 5:00pm on the Saturday closest to the midpoint of the short school holidays;
(ii)in 2010 and each alternate year thereafter, from 5:00pm on the Saturday closest to the midpoint of the short school holidays until 5:00pm on the last day of the short school holidays;
For clarification of paragraph 2 herein, her live with the Respondent during the short school holidays:
(a)in 2011 and each alternate year thereafter, from 5:00pm on the Saturday closest to the midpoint of the short school holidays until 5:00pm on the last day of the short school holidays; and
(b)in 2010 and each alternate year thereafter, from 5:00pm on the last day of term until 5:00pm on the Saturday closest to the midpoint of the short school holidays;
The Applicant’s time pursuant paragraph 4(a) of the 2009 Orders recommences 21 days after the time spent pursuant to paragraph 2 herein.

AND THE COURT NOTES THAT:

(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

PAC 2925 of 2008

MR CLEMENT

Applicant

and

MS CLEMENT

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by MR CLEMENT (“the father”) against

MS CLEMENT (“the mother”) seeking various parenting orders in relation to her of the relationship, [X], born [in] 2002 (“[X]”). More specifically, the father is seeking various parenting orders on a final and interim basis. The…

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 Clement and Clement

Details

AGLC: Clement and Clement [2010] FMCAfam 1143
Case: [2010] FMCAfam 1143
Decision Date

CaseChat Overview and Summary

This case involves an application by Mr Clement (the father) against Ms Clement (the mother) seeking various parenting orders in relation to their daughter, [X], born in 2002. The father seeks various parenting orders on a final and interim basis, including a change to the school holiday time arrangements. The mother opposes the orders sought by the father and seeks the dismissal of the application and costs.

The legal issues the court was required to decide include whether the existing parenting orders should remain in full force and effect, and whether there has been a significant change of circumstances that would justify re-litigating the parenting issues. The court considered the Full Court decision of Rice & Asplund, which states that where a final parenting order has been made, the applicant must establish a significant change of circumstances before the court will entertain a rehearing of parenting issues.

The court found that [X]'s best interests would be served by making a minor variation to the existing orders that would facilitate the parties' holiday time by alternating between the first and second weeks of school term holiday periods. The father can have the second half of such school term holidays for the calendar year 2010, and each alternate year thereafter, and the mother can have the first half in the calendar year 2010, and each alternate year thereafter. In 2011, and each alternate year thereafter, the position will be reversed. The father's weekend time will also recommence on the Friday, three weeks after the time spent during school term holiday time.

The court did not propose making any other orders until the Rice & Asplund issues are addressed by the parties. The court reminded the parties that common sense dictates that each should provide the other with full itinerary details well in advance, if they propose to travel with [X] outside New South Wales and, indeed, outside Australia.

Orders