DL & TA - [2006] FMCAfam 128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DL & TA

[2006] FMCAfam 128

FAMILY LAW – Parenting – father seeks equal shared parenting for 7 year old child – high level of conflict between parties – consideration of factors necessary for shared care – final parenting orders made 3 years ago – whether there has been a change in circumstances.

Family Law Act 1975

H v W (1995) FLC 92-598
King v Finneran [2001] FamCA 344
Newling and Newling (1987) FLC 91-856
Rice v Asplund (1979) FLC 90-215
T and N [2001] FMCAfam 222

Applicant:

Respondent:

File Number:

SYM 965 of 2005

Judgment of:

Sexton FM

Hearing dates:

8 & 9 March 2006

Delivered at:

Sydney

Date of Last Submission:

9 March 2006

Delivered on:

24 March 2006

REPRESENTATION

Counsel for the Applicant:

Mr W Moss

Solicitors for the Applicant:

Verekers Lawyers

Counsel for the Respondent:

Ms P Carr

Solicitors for the Respondent:

Rita Thakur &Associates

Counsel for the Child Representative:

Mr J Pesce

Solicitors for the Child Representative:

Maguire & McInerney

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The child AA born 30 October 1998 [“AA”] live with the mother.
AA have contact with the father during school terms as follows:
(a)Every second weekend from after school Friday until before school Monday or until before school Tuesday if Monday is a public holiday commencing Friday 31 March 2006;
(b)Every alternate Thursday from after school until before school the following day commencing Thursday 6 April 2006; and
(c)At any other time by agreement between the parties.
AA have contact with the father during school holidays as follows:
(a)For the first half of all school holiday periods in 2006 and in all years ending in an even number and for the second half of all school holiday periods in 2007 and in all years ending in an odd number; and
(b)At other or alternate times by agreement between the parties.
AA have additional contact with the father as follows:
(a)On Father’s Day, if not a contact weekend from 9.00a.m until 5.00p.m;
(b)On the father’s birthday, if not a contact weekend and on a weekend from 9.00a.m until 5.00p.m;
(c)On the father’s birthday, if on a weekday from 4.00p.m until 6.00p.m;
(d)On AA’s birthday from 4.00p.m until 6.00p.m if on a week day and from 12 noon until 4.00p.m if on a weekend which is not otherwise a contact weekend;
(e)From 4.00p.m Christmas Day until 5.00p.m. on Boxing Day each year.
The father shall return AA to the mother at 9.00a.m on Mother’s Day should that day fall on a contact weekend.
The father shall return AA to the mother for 4 hours on AA’s birthday should that birthday fall during a contact weekend, precise times to be agreed between the parties but failing such agreement, from 12 noon until 4.00p.m.
The father shall return AA to the mother for 2 hours on AA’s birthday should that birthday fall during a week day contact period, precise times to…

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.

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Details

AGLC: DL & TA [2006] FMCAfam 128
Case: [2006] FMCAfam 128
Decision Date: 24 March 2006

CaseChat Overview and Summary

The case involved the parents of a child, AA, who were in dispute over the child’s living arrangements and contact with the father. The Family Court of Australia was tasked with determining the most appropriate parenting orders to ensure the welfare and development of AA. The court had to consider the legal principles outlined in the Family Law Act 1975, particularly sections 60CC and 60B, which require the court to consider the best interests of the child and give weight to the principle of shared parental responsibility.

The central legal issues before the court were whether the child should primarily reside with the mother or the father, and if so, what contact arrangements would be in the child's best interests. The court needed to balance the statutory requirements of shared parental responsibility and the need to minimise the potential for conflict between the parents, which could adversely affect the child. Additionally, the court had to determine the specific times and conditions for the father’s contact with the child, including during school terms and holidays, as well as special occasions such as birthdays and public holidays.

The court ruled that the child should primarily reside with the mother, acknowledging the importance of stability and the mother’s role in the child’s day-to-day care, welfare, and development. The court set detailed contact arrangements for the father, specifying times during school terms and holidays. The contact was structured to provide the father with significant periods of time with the child while also ensuring that the child's routine and educational needs were not disrupted. The court also imposed restrictions on the parents to prevent them from making negative comments about each other in the presence of the child and mandated that both parents attend various assessments and programs aimed at facilitating a healthy co-parenting relationship. These orders were designed to foster a positive environment for the child while ensuring that both parents could maintain a meaningful relationship with her.

Orders

Orders of the court

All previous parenting orders be discharged.

The child AA born 30 October 1998 [“AA”] live with the mother.

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

(a) Every second weekend from after school Friday until before school Monday or until before school Tuesday if Monday is a public holiday commencing Friday 31 March 2006;

(b) Every alternate Thursday from after school until before school the following day commencing Thursday 6 April 2006; and

AA have contact with the father during school holidays as follows:

(a) For the first half of all school holiday periods in 2006 and in all years ending in an even number and for the second half of all school holiday periods in 2007 and in all years ending in an odd number; and

(b) At other or alternate times by agreement between the parties.

AA have additional contact with the father as follows:

(a) On Father’s Day, if not a contact weekend from 9.00a.m until 5.00p.m;

(b) On the father’s birthday, if not a contact weekend and on a weekend from 9.00a.m until 5.00p.m;

(d) On AA’s birthday from 4.00p.m until 6.00p.m if on a week day and from 12 noon until 4.00p.m if on a weekend which is not otherwise a contact weekend;

(e) From 4.00p.m Christmas Day until 5.00p.m. on Boxing Day each year.

The father shall return AA to the mother at 9.00a.m on Mother’s Day should that day fall on a contact weekend.

The father shall return AA to the mother for 4 hours on AA’s birthday should that birthday fall during a contact weekend, precise times to be agreed between the parties but failing such agreement, from 12 noon until 4.00p.m.

The father shall return AA to the mother for 2 hours on AA’s birthday should that birthday fall during a week day contact period, precise times to be agreed between the parties but failing such agreement, from 4.00p.m until 6.00p.m.

The father shall return AA to the mother from 9.00a.m. until 5.00p.m on the mother’s birthday should that birthday fall during a contact weekend.

10.

The father shall return AA to the mother from 4.00p.m until 6.00p.m on the mother’s birthday should that birthday fall during a week day contact period.

11.

Alternate weekend contact shall re-commence on the first weekend after the school holiday period when AA is with the father in the first half of the holidays and on the second weekend after the school holiday period when AA is with the father in the second half of the holidays.

12.

At the end of Terms 1, 2 and 3 changeover in school holiday periods shall occur at 4.00p.m. on the second Saturday of the holidays unless otherwise agreed.

13.

In the Christmas school holidays, changeover shall occur at 4.00p.m. on Day 20 of the holidays, Day 1 being the day Term 4 ends, unless otherwise agreed.

14.

For a period of two years from the date of order:

(a) When AA is not at school, changeover shall take place at Centacare Contact Centre and the parties to make immediate contact with the Contact Centre to make all necessary arrangements;

(b) In the event the Contact Centre is closed, changeover shall take place in the foyer of the Corrimal police station.

15.

From the date 2 years from the date of order, contact changeover shall take place in accordance with Order (14) unless the parties agree on a different changeover location.

16.

Pursuant to section 62F(2) of the Family Law Act 1975 the parties must within 7 days contact the Wollongong office of Relationships Australia on 02 4228 7711 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.

17.

The parties must attend the appointment at any reasonable location nominated by Relationships Australia and complete the assessment.

18.

If assessed as suitable and Relationships Australia nominates counselling, mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.

19.

The father serve a sealed copy of these orders on the Principal of TPS by delivering a copy of the Orders to the school Principal within 7 days.

20.

The mother serve a sealed copy of these orders on the Corrimal office of the Department of Community Services by delivering a copy of the orders to the Manager within 7 days.

21.

Each party must ensure AA is delivered to school before the start of every school day unless AA is ill or has an unavoidable commitment when the party caring for AA will notify the school of the reason for her absence on the first morning and in the event of illness, provide a medical certificate to the school, immediately upon AA’s return to school.

22.

Each party be restrained from making any negative comment about the other party or any member of the other party’s family in the presence or hearing of AA.

23.

Each party shall have responsibility for AA’s day to day care, welfare and development when she is in that party’s care.

24.

The mother shall authorise AA’s school to provide to the father all notices of school events to which parents are invited and copies of school reports.

25.

For at least 12 months, the mother shall attend AA’s school each week to consult with a member of staff in relation to remedial assistance for AA and thereafter the mother to attend AA’s school at a frequency recommended by the school Principal and/or AA’s teacher.

26.

Each party be restrained from entering the boundaries of the other party’s residence without the prior consent of the other party.

27.

For a period of at least 12 months, the mother shall attend the Corrimal Office of the Department of Community Services each week to discuss issues relating to AA’s welfare and thereafter the mother shall continue her attendances at DOCS at a frequency recommended by the Manager.

28.

Each party must advise the other immediately in the case of AA suffering any kind of medical emergency.

29.

Each party shall notify the other of any change in their residential address within 24 hours of such change occurring.

30.

Each party shall notify the other within 24 hours of their landline telephone number and mobile telephone number and advise the other immediately in the event their contact details change.

31.

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

32.

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

33.

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

34.

All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

THE COURT NOTES:

(a) That both parties acknowledged at hearing the importance of avoiding conflict between them at all times and the destructive impact of such behaviour on AA’s development.

(b) That both parties accept the importance of making positive remarks about the other party to AA.

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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