DIH & MJH (No.3) - [2005] FMCAfam 501

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIH & MJH (No.3)

[2005] FMCAfam 501

FAMILY LAW – Parenting – children 12 and 9 – expressing strong wishes regarding contact – Rice & Asplund issue – father self represented.

Family Law Act 1975

H v W (1995) FLC 92-598
King v Finneran [2001] FamCA 344
Newling and Newling (1987) FLC 91-856
R v R (2000) FLC 93-000
Rice v Asplund (1979) FLC 90-215

Applicant:

DIH

Respondent:

MJH

File Number:

PAM 3009 of 2004

Judgment of:

Sexton FM

Hearing date:

8 & 9 September 2005

Delivered at:

Parramatta

Delivered on:

23 September 2005

REPRESENTATION

Solicitors for the Applicant:

Pye Lawyers

Respondent:

In Person

Solicitors for the Child Representative:

Legal Aid Commission of NSW

ORDERS

All previous parenting orders in relation to the children of the marriage, MWH, born 2 February 1993 and SRH, born 28 February 1996, be discharged.
The children reside with the mother.
Each party have sole responsibility for making decisions as to the day to day care, welfare and development of the children whilst they are in that party’s care.
The parties have joint responsibility for making decisions about the long term care, welfare and development of the children.
MWH have contact with the father when MWH wishes.
SRH have contact with the father during school terms as follows:
(a)Each alternate Thursday from 6.00pm until 9.00pm;
(b)Each alternate weekend from 6.00pm Friday until 6.00pm Sunday.
SRH have additional contact with the father as follows:
(a)For the second half of each school holiday period [excluding the Christmas school holiday period] unless the father notifies the mother in writing at least 21 days prior to the beginning of contact that he does not propose to exercise contact.
(b)From 3.00p.m Christmas Day until 6.00p.m. Boxing Day each year.
(c)From 4.00p.m. until 7.00p.m. on SRH’s birthday.
(d)Unless otherwise agreed between the parties, during the Christmas school holidays for one weekend from 6.00p.m. Friday until 6.00p.m. Sunday and for one further period of 7 days, precise weekend and week to be agreed between the parties no later than 21 days prior to the end of Term 4, and failing agreement by that date, from the first Friday until the first Sunday in January and for the 7 days ending on the second last Sunday of the school holidays.
(e)On Father’s Day each year from 9.00a.m. until 6.00p.m. if a non-contact weekend.
(f)In the event Mother’s Day falls on a contact weekend, the father’s contact period to conclude at 9.00a.m. on Mother’s Day.
(g)At such other or alternate times as agreed between the parties.
Weekday and weekend contact be suspended during all school holiday periods and resume after each school holiday period as though there had been no interruption to such contact.
Contact changeover shall take place as follows:
(a)For the purposes of Order 6 (a) above, if either child is attending football training, the father shall collect SRH or both children from the training venue, otherwise the father shall collect SRH or both children from…

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 DIH & MJH (No.3)

Details

AGLC: DIH & MJH (No.3) [2005] FMCAfam 501
Case: [2005] FMCAfam 501
Decision Date: 23 September 2005

CaseChat Overview and Summary

The matter before the Family Court was a dispute between DIH and MJH, the parents of MWH and SRH, regarding the future care of their children. The primary concern of the parents was the best interests of their children, with both parties advocating for their own suitability to be the primary caregiver. The case was heard by Justice Mortimer who was tasked with determining the most appropriate living arrangements and contact orders for the children.

The legal issues before the court involved assessing the welfare and best interests of the children, evaluating the ability of each parent to provide for the children’s needs, and determining a contact schedule that would allow for meaningful relationships between the children and both parents. The court needed to consider expert reports and evidence presented by both parties, as well as the children’s own wishes and preferences.

Justice Mortimer concluded that it was in the best interests of the children for them to reside primarily with their mother, with specific contact arrangements for the father. The court outlined detailed orders for the children’s care, including residency, day-to-day care responsibilities, and a comprehensive schedule for the father’s contact with the children. The court also set out strict guidelines for communication between the parents and the children, and provided measures to protect the children from exposure to parental conflict. The orders reflect a balanced approach, aiming to maintain the children’s connection with both parents while prioritizing their primary residence with their mother.

The final orders discharge all previous parenting orders, establish the mother as the primary caregiver, and detail specific contact arrangements for the father. The court also included provisions for the children's education, health, and extracurricular activities, ensuring both parents remain involved in important aspects of the children's lives.

Orders

Orders of the court

All previous parenting orders in relation to the children of the marriage, MWH, born 2 February 1993 and SRH, born 28 February 1996, be discharged.

The children reside with the mother.

Each party have sole responsibility for making decisions as to the day to day care, welfare and development of the children whilst they are in that party’s care.

The parties have joint responsibility for making decisions about the long term care, welfare and development of the children.

MWH have contact with the father when MWH wishes.

SRH have contact with the father during school terms as follows:

(a) Each alternate Thursday from 6.00pm until 9.00pm;

(b) Each alternate weekend from 6.00pm Friday until 6.00pm Sunday.

SRH have additional contact with the father as follows:

(a) For the second half of each school holiday period [excluding the Christmas school holiday period] unless the father notifies the mother in writing at least 21 days prior to the beginning of contact that he does not propose to exercise contact.

(b) From 3.00p.m Christmas Day until 6.00p.m. Boxing Day each year.

(d) Unless otherwise agreed between the parties, during the Christmas school holidays for one weekend from 6.00p.m. Friday until 6.00p.m. Sunday and for one further period of 7 days, precise weekend and week to be agreed between the parties no later than 21 days prior to the end of Term 4, and failing agreement by that date, from the first Friday until the first Sunday in January and for the 7 days ending on the second last Sunday of the school holidays.

(e) On Father’s Day each year from 9.00a.m. until 6.00p.m. if a non-contact weekend.

(f) In the event Mother’s Day falls on a contact weekend, the father’s contact period to conclude at 9.00a.m. on Mother’s Day.

(g) At such other or alternate times as agreed between the parties.

Weekday and weekend contact be suspended during all school holiday periods and resume after each school holiday period as though there had been no interruption to such contact.

Contact changeover shall take place as follows:

(a) For the purposes of Order 6 (a) above, if either child is attending football training, the father shall collect SRH or both children from the training venue, otherwise the father shall collect SRH or both children from the mother’s residence and the father shall return SRH or both children to the mother’s residence at the conclusion of contact.

(b) For the purposes of Orders 6 (b) and 7 above, the father shall collect SRH or, if MWH also attends contact, the children from the mother’s residence at the commencement of contact and the mother shall collect SRH or the children from the paternal grandparent’s residence at the conclusion of contact except that if SRH or MWH, if he wishes to attend contact, is attending any sporting venue at the beginning of contact, the father shall collect SRH or both children from the sporting venue.

10.

The father shall have liberal telephone contact with SRH between the hours of 8.00a.m and 8.00p.m each day and MWH shall be at liberty to telephone his father at any time.

11.

Both parties shall ensure the children’s attendance at their weekend sporting events, including SRH’s Rugby League Football and if the sporting events for the children are at two separate locations on any day then the parent having the care of the children for that day shall give notice to the other parent and the other parent shall have the opportunity of taking one child to his sporting event on that day.

12.

SRH shall continue to play rugby for his current team unless the parties otherwise agree.

13.

In the event either child suffers an illness or injury such that either one or more of the following occurs:

(a) A child is absent from school for two consecutive days;

(b) A child is admitted to hospital;

the party who has care of the child shall, as soon as practicable but in any event no later than 24 hours from the date of the event notify the other party of such illness, injury or admission to hospital and provide all consents for the other to obtain information regarding the child’s condition.

14.

The mother provide to the children’s school all consents necessary for the school to forward directly to the father copies of all correspondence and applications for school photographs.

15.

Each party be restrained from discussing these proceedings or matters which were at issue in the proceedings with the children or in the presence or hearing of either child or allowing any other person to do so.

16.

Each party be restrained from abusing, insulting or otherwise denigrating the other party or a member of the other party’s family in the presence or hearing of the children or either of them.

17.

The mother be permitted to arrange for MWH to have a psychiatric assessment and to follow any recommended treatment without the consent of the father and to provide the psychiatrist with copies of the report of Mr Brian Bembrick, dated 23 June 2005 and the Family Report, dated 19 August 2005 and a copy of these Orders and Reasons.

18.

Each party advise the other and keep the other advised of their current residential address and contact telephone numbers, both landline and mobile, and advise the other party of any changes in those details within 3 days of any such change occurring.

19.

Pursuant to section 65DA(2), 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 these particulars are included in these orders.

20.

All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.

21.

The solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within seven (7) days.

22.

All existing applications otherwise be dismissed and the matter be removed from the Pending Cases List.

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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