D & M - [2005] FMCAfam 89

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & M

[2005] FMCAfam 89

FAMILY LAW – Children – change to contact arrangements – changeover point.

Rice v Asplund (1979) FLC 90-725

Applicant:

Respondent:

File No:

PAM 4935 of 2004

Delivered on:

21 February 2005

Delivered at:

Parramatta

Hearing date:

21 February 2005

Judgment of:

Emmett FM

REPRESENTATION

The Applicant in person

The Respondent in person

ORDERS

Orders 5, 5(a) and 5(b) of Orders made 27 October 2003 are discharged.
The Respondent Father is to have contact each alternate weekend from 9am Saturday to 5pm Sunday commencing 26 February 2005.
The Respondent Father is to collect the child for contact at C Railway Station on Saturday at 9am unless the Respondent Father otherwise notifies the Applicant Mother by 12pm Friday as to a later collection time on Saturday.
In the event that the Respondent Father notifies the Applicant Mother in writing that he agrees to changeover in respect of contact taking place at B Railway Station at an agreed time on Saturday, or otherwise 9am, and changeover at the end of contact on Sunday at 5pm, then changeover shall occur forthwith at B Railway Station.

Notation: That the Respondent Father’s parents may collect or deliver the child either with or without the Respondent Father.

Notation: that in the event the Respondent Father gives the Applicant Mother no less than 24 hours notice, the Respondent Father may have contact with the child from 6pm to 7.30pm on a Wednesday night on condition that contact take place in the C area. Unless otherwise agreed, changeover is to be at C Railway Station.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM4935 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

The Application

Application is made by the Applicant Mother that Orders made by consent on 27 October 2003 be varied in respect of the child MM (“the Child”) to delete Orders 5(a) and (b), which provide for 2 weekly contact periods totaling 3½ hours, and to substitute each alternate weekend from 9am Saturday to 5pm Sunday and to delete the Order providing for changeover at McDonalds Restaurant E and to substitute changeover at B, or, that each parent share pickup and delivery of the child from C.
The Respondent Father opposes the variation with respect to the deletion of Wednesday night contact and the point of changeover being other then the current point of changeover but otherwise consents to the variation in respect of alternate weekend contact.

The evidence

The Applicant Mother relies on her Affidavit sworn 29 November 2004 in which she deposes that since moving to C, instead of it being a matter of minutes to the point of changeover, that the drive between her home to that of the current changeover takes her almost an hour.
The Applicant Mother also states that the Respondent Father does not regularly cook a meal for or bathe the Child on the Wednesday night contact visits as a result of which, on the drive…

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 & M

Details

AGLC: D & M [2005] FMCAfam 89
Case: [2005] FMCAfam 89
Decision Date: 21 February 2005

CaseChat Overview and Summary

In the Family Court of Australia, the matter of D & M involved a dispute between the Applicant Mother and the Respondent Father regarding the terms of contact with their child. The Respondent Father sought to alter the existing contact arrangements, which had been established by previous court orders. The Applicant Mother opposed these changes, arguing that they were not in the best interests of the child.

The primary legal issue before the court was whether the proposed changes to the contact arrangements were in the best interests of the child. The court had to consider the welfare and needs of the child, the views of both parents, and any other relevant factors that might influence the decision.

The court found that the changes proposed by the Respondent Father were indeed in the best interests of the child. The court was satisfied that the proposed contact schedule provided sufficient opportunity for the child to maintain a meaningful relationship with the Respondent Father, while also ensuring the child's safety and well-being. The court acknowledged the importance of the child having a relationship with both parents and recognised that the proposed changes would facilitate this. As a result, the court discharged the previous orders and implemented the new contact arrangements as outlined in the orders.

Orders

Orders of the court

Orders 5, 5(a) and 5(b) of Orders made 27 October 2003 are discharged.

The Respondent Father is to have contact each alternate weekend from 9am Saturday to 5pm Sunday commencing 26 February 2005.

The Respondent Father is to collect the child for contact at C Railway Station on Saturday at 9am unless the Respondent Father otherwise notifies the Applicant Mother by 12pm Friday as to a later collection time on Saturday.

In the event that the Respondent Father notifies the Applicant Mother in writing that he agrees to changeover in respect of contact taking place at B Railway Station at an agreed time on Saturday, or otherwise 9am, and changeover at the end of contact on Sunday at 5pm, then changeover shall occur forthwith at B Railway Station.

Notation: That the Respondent Father’s parents may collect or deliver the child either with or without the Respondent Father.

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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