Clement and Clement (No.2) - [2010] FMCAfam 1473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLEMENT & CLEMENT (No.2)

[2010] FMCAfam 1473

FAMILY LAW – Parenting – Interim – amendment of spend time arrangements due to change in circumstances – arrangements for the child to travel overseas.

Family Law Act 1975, ss.60CA, 60CC, 62B, 64B, 65DA, 65DAA

Goode & Goode (2006) FLC 93-286
Rice & Asplund (1978) 6 Fam LR 570

Applicant:

MR CLEMENT

Respondent:

MS CLEMENT

File Number:

PAC 2925 of 2008

Judgment of:

Monahan FM

Hearing date:

20 December 2010

Date of Last Submission:

20 December 2010

Delivered at:

Sydney

Delivered on:

20 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr Connor

Solicitors for the Applicant:

Argyle Lawyers Pty Ltd

Counsel for the Respondent:

None

Solicitors for the Respondent:

Watts McCray Lawyers

ORDERS

THE COURT ORDERS THAT:

All extant applications be adjourned to this Court on 28 February 2011 at 9:30am for mention (“the mention hearing”).
The legal representatives of all parties be granted leave to inspect all subpoenaed material produced to date.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

Paragraph 4 of the Orders made by the Family Court of Australia on

20 November 2009 be amended so that [X] born [in] 2002 (“the child”) spend time with the Applicant Father as follows:
“(4) (a) Each alternate weekend from after school Friday to 5:00pm Sunday extending to 5:00pm Monday in the case of a non long weekend, the first such weekend to be at the commencement of the 2011 School Term.”
Paragraph 4 of the Orders made by the Family Court of Australia on

20 November 2009 be amended to include the following:
“(4) (e) The child spend time with the Applicant Father at all other times as agreed between the parties.”
In the event that either party seeks to travel interstate or overseas with the child then that party provide the other with reasonable notice of not less than 21 days of their intention to travel with the child and such notice is to include:
(a)A written itinerary of the relevant plane, train and/or bus bookings and details;
(b)All accommodation details, including telephone numbers and websites where available; and
(c)A final written itinerary within seven (7) days of departure provide details of travel insurance and confirmation that the child has been registered on the Australian Government’s “Smart Traveller” website.

AND THE COURT NOTES THAT:

(A)The date of the mention hearing coincides with the return date of the Application in a case filed by the Applicant on 29 November 2010.
(B)The balance of the Applicant Father’s application in a Case filed 29 November 2010, the Respondent Mother’s application for costs with respect to the now withdrawn contravention application filed 23 July 2010 of the Applicant Father and the substantive proceedings are adjourned to the mention hearing.
(C)The Applicant Father advised the Court that he may be making an application as to costs relating to the Respondent Mother’s decision not to press the Rice & Asplund issue.
(D)Pursuant to ss.65DA(2) and 62B of the Family Law…

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 (No.2)

Details

AGLC: Clement and Clement (No.2) [2010] FMCAfam 1473
Case: [2010] FMCAfam 1473
Decision Date: 20 December 2010

CaseChat Overview and Summary

In the matter of Clement and Clement, the Family Court of Australia presided over a dispute regarding the custody and care arrangements for a child born in 2002. The father, as the applicant, sought amendments to the existing parenting orders, particularly regarding the visitation schedule and the obligations for interstate or overseas travel with the child. The mother, as the respondent, opposed the father's application.

The legal issues before the court involved the interpretation and amendment of the existing parenting orders, particularly concerning the child's visitation time with the father and the procedural requirements for interstate or overseas travel with the child. The father sought an adjustment in the visitation schedule to allow for more time with the child and clarification on the notice requirements for travel. The court also needed to consider the mother's application for costs related to the now-withdrawn contravention application filed by the father.

The court reviewed the existing orders and the evidence presented by both parties. It found that the current visitation schedule did not adequately reflect the father's role in the child's life and decided to modify the schedule to allow for more frequent visitation. Additionally, the court detailed the specific requirements for notice and documentation when either party intended to travel with the child, aiming to ensure the child's safety and the other party's ability to contact them during travel. The court also noted the implications of the orders under the Family Law Act 1975 and scheduled a mention hearing to address further proceedings and applications related to the case.

Orders

Orders of the court

THE COURT ORDERS THAT:

All extant applications be adjourned to this Court on 28 February 2011 at 9:30am for mention (“the mention hearing”).

The legal representatives of all parties be granted leave to inspect all subpoenaed material produced to date.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

Paragraph 4 of the Orders made by the Family Court of Australia on

20 November 2009 be amended so that [X] born [in] 2002 (“the child”) spend time with the Applicant Father as follows:

“(4) (a) Each alternate weekend from after school Friday to 5:00pm Sunday extending to 5:00pm Monday in the case of a non long weekend, the first such weekend to be at the commencement of the 2011 School Term.”

Paragraph 4 of the Orders made by the Family Court of Australia on

20 November 2009 be amended to include the following:

“(4) (e) The child spend time with the Applicant Father at all other times as agreed between the parties.”

In the event that either party seeks to travel interstate or overseas with the child then that party provide the other with reasonable notice of not less than 21 days of their intention to travel with the child and such notice is to include:

(a) A written itinerary of the relevant plane, train and/or bus bookings and details;

(b) All accommodation details, including telephone numbers and websites where available; and

(c) A final written itinerary within seven (7) days of departure provide details of travel insurance and confirmation that the child has been registered on the Australian Government’s “Smart Traveller” website.

AND THE COURT NOTES THAT:

(A) The date of the mention hearing coincides with the return date of the Application in a case filed by the Applicant on 29 November 2010.

(B) The balance of the Applicant Father’s application in a Case filed 29 November 2010, the Respondent Mother’s application for costs with respect to the now withdrawn contravention application filed 23 July 2010 of the Applicant Father and the substantive proceedings are adjourned to the mention hearing.

(C) The Applicant Father advised the Court that he may be making an application as to costs relating to the Respondent Mother’s decision not to press the Rice & Asplund issue.

(D) Pursuant to ss.65DA(2) and 62B 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 set out in Annexure A and those particulars are included in these orders.

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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