D and A - [2003] FMCAfam 138

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & A

[2003] FMCAfam 138

FAMILY LAW – Children – residence order – child aged 6 years – whether there should be an order for shared residence.

Family Law Act1975, ss.60B, 65E, 68F, 68K

Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598
R & R (Children’s Wishes) (2000) 25 Fam LR 712; FLC 93-000
Joannou (1985) FLC 91-642
Raby (1976) 2 Fam LR 11348; FLC 90-104
Granow (1979) 144 CLR 513; 5 Fam LR 719; FLC 90-716
Epperson v Dampney (1976) FLC 90-061
Cullen (1981) 8 Fam LR 35; FLC 91-113
McEnearney (1980) FLC 90-866
Chandler (1981) FLC 91-008
H & H - K (1990) FLC 92-128
Hall (1979) 5 Fam LR 609; FLC 90-713

Applicant:

D D

Respondent:

M C A

File No:

NCM 5442 of 2002

Delivered on:

3 April 2003

Delivered at:

Coffs Harbour

Hearing dates:

1 & 2 April 2003

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr Loomes

Solicitors for the Respondent:

Ms Susan Green

ORDERS

the child of the relationship, A D, born 13 September 1996 is to reside with the Respondent mother who is to have the responsibility for the long term and day-to-day care, welfare and development of the said child;
the Applicant father is to have contact with the said child as follows:
(a)each alternate weekend during school term time from after school on Friday to the commencement of school on Monday, or the commencement of school on Tuesday if the Monday is a public holiday, commencing on Friday, 4 April 2003;
(b)for one half of the autumn, winter and spring school holidays in each year, being the second half in 2003 and each alternate year thereafter and the first half in 2004 and each alternate year thereafter;
(c)by telephone at all reasonable times;
(d)on the weekend that includes Father’s Day each year at the same times as are set out in Order(2)(a) above.
(e)from 3.30 pm to 5.30 pm on the child's birthday if that day falls on a day when the child is required to attend school and from 12 noon until 5 pm if the birthday should fall on a day when the child is not required to attend school and if the day falls on a day when the father is not otherwise entitled to exercise contact;
(f)for one half of each Christmas/January school holiday period being the second half in 2003 and alternate years thereafter and the first half of the said school holidays in 2004 and each alternate year thereafter;
(g)from 12 noon on Christmas Day to 5 pm on Boxing Day in 2003 and each alternate year thereafter;
(h)such further times as the parties shall agree;
the father is not to exercise contact with the child on the weekend that includes Mother’s Day of each year;
for the purpose of exercising contact pursuant to Orders (2)(a) and (2)(d) above the father is to collect the child…

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 D and A

Details

AGLC: D and A [2003] FMCAfam 138
Case: [2003] FMCAfam 138
Decision Date: 3 April 2003

CaseChat Overview and Summary

D and A were parties in a family law matter concerning the care and contact arrangements for their child, A D, born on 13 September 1996. The matter was heard in the Family Court of Australia, where the primary dispute was over the allocation of parental responsibility for the child’s long-term care, welfare, and development, as well as the specifics of the father’s contact arrangements.

The legal issues before the court included determining the primary residential parent for the child, the specifics of contact arrangements for the father, and other ancillary issues such as the decision-making authority regarding the child's education and day-to-day care. The court was tasked with balancing the welfare and best interests of the child against the rights and wishes of both parents.

The court decided that the child, A D, should reside with the respondent mother, who was to have the responsibility for the child’s long-term and day-to-day care, welfare, and development. The father was granted specific contact arrangements, including alternate weekend visits, portions of school holidays, and specified contact times on special days. The father was also required to collect and return the child from specific locations, such as a bus stop or a nominated place not within 100 metres of the mother’s residence. Additionally, the mother was ordered to provide the father with regular copies of school reports and other educational documentation. The father was prohibited from exercising contact on the weekend that includes Mother’s Day each year.

The final orders of the court clearly outlined the child's residence with the mother, detailed the father's contact arrangements, and included specific instructions regarding the collection and return of the child during contact periods. The court also clarified the decision-making authority of the mother regarding the child's education and day-to-day care, including the right to decide the child's school and hair care.

Orders

Orders of the court

the child of the relationship, A D, born 13 September 1996 is to reside with the Respondent mother who is to have the responsibility for the long term and day-to-day care, welfare and development of the said child;

the Applicant father is to have contact with the said child as follows:

(a) each alternate weekend during school term time from after school on Friday to the commencement of school on Monday, or the commencement of school on Tuesday if the Monday is a public holiday, commencing on Friday, 4 April 2003;

(b) for one half of the autumn, winter and spring school holidays in each year, being the second half in 2003 and each alternate year thereafter and the first half in 2004 and each alternate year thereafter;

(d) on the weekend that includes Father’s Day each year at the same times as are set out in Order(2)(a) above.

(e) from 3.30 pm to 5.30 pm on the child's birthday if that day falls on a day when the child is required to attend school and from 12 noon until 5 pm if the birthday should fall on a day when the child is not required to attend school and if the day falls on a day when the father is not otherwise entitled to exercise contact;

(f) for one half of each Christmas/January school holiday period being the second half in 2003 and alternate years thereafter and the first half of the said school holidays in 2004 and each alternate year thereafter;

(g) from 12 noon on Christmas Day to 5 pm on Boxing Day in 2003 and each alternate year thereafter;

(h) such further times as the parties shall agree;

the father is not to exercise contact with the child on the weekend that includes Mother’s Day of each year;

for the purpose of exercising contact pursuant to Orders (2)(a) and (2)(d) above the father is to collect the child from the bus stop in B at the commencement of contact and return the child to the bus stop at the conclusion of each contact period;

the purpose of exercising contact pursuant to Order(2)(b) and (f) above, the father is to collect the child from a place nominated by the mother not being a place within 100 metres of the mother's residence, to include the B Courthouse whenever possible, and the mother is to collect the child from the father's residence at the conclusion of each contact period;

school holiday contact for the first half of the school holidays is to commence at 9 am on the day after school term ends and is to conclude at 5 pm on the middle Saturday of the school holiday period;

school holiday contact for the second half of the school holidays is to commence at 9 am on the middle Saturday and is to conclude at 5 pm on the day the before the said child is required to commence school;

the words:

Long term care, welfare and development of the child

in Order(1) above include the responsibility for deciding which school or other education institution the child is to attend pursuant to the requirements for a child to attend school according to the law in the State of New South Wales;

the words:

Day-to-day care, welfare and development of the child

in Order(1) above include the responsibility for deciding when and how the child's hair is to be cut;

10.

The mother is to do all things necessary to authorise the principal of any school attended by the child to provide to the father on a regular basis copies of all school reports, newsletters, bulletins, information about school photographs and other documentation normally forwarded to parents of children attending that school.

11.

All documents produced on subpoena may be returned after one month from today.

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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