DONALD & DONALD - [2012] FMCAfam 876

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DONALD & DONALD

[2012] FMCAfam 876

FAMILY LAW – Final arrangements for children aged 16, 13 & 12 – oldest child lives with father – two younger children live with mother – planned relocation of mother to Tasmania from rural South Australia to undertake course of study – mother wishes to take younger children with her – relocation opposed by father – parties have been separated for many years – poor relationship between parties – presumption of equal shared parental responsibility – insight into the responsibilities of parenthood – views of children – meaningful level of relationship – arrangements for children to spend time with father and older sibling prior to, during and after proposed relocation – best interests.

Family Law Act 1975, ss.4; 60B; 60CC; 61DA; 65DAA; 65DAC; 65DAE

B v B [2006] FamCA 1207
MRR v GR [2010] HCA4
C & S [1998] FamCA 66
AMS v AIF; AIF v AMS (1999) FLC 92-852
Goode & Goode (2006) FLC 92-286
Taylor & Barker [2007] FamCA 1246
Fragomeli & Fragomeli (1993) FLC 92-393
B & B: Family Law Reform Act 1995 (1997) FLC 92-755
D and S V (2003) FLC 93-137
Godfrey v Saunders (2007) 208 FLR 287
M & S (2007) FLC 93-313
Morgan & Miles [2007] FamCA 1230
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712

Applicant:

MS DONALD

Respondent:

MR DONALD

File Number:

ADC 1456 of 2011

Judgment of:

Brown FM

Hearing dates:

12 & 13 July 2012

Date of Last Submission:

13 July 2012

Delivered at:

Adelaide

Delivered on:

30 August 2012

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

Ms Cocks

Solicitors for the Respondent:

Mason Westover Homburg

ORDERS

All previous orders in respect of the child [X] born [in] 1996 are discharged.
The two younger children of the marriage [Y] born [in] 1999 and [Z] born [in] 2000 (hereinafter referred to as “the children”) live with the mother and she have sole parental responsibility for them.
The mother be permitted to live with the children in [P] in the state of Tasmania during 2013 from 20 December 2012 until 20 December 2013.
The children spend time with their father as follows:
(a)During school terms, commencing with the fourth term of 2012, whilst the children are living in South Australia, on four weekends each term between 10.00 am Saturday until 4.00 pm the following Sunday, the weekends to be agreed between the parties but failing agreement to be the second, fourth, sixth and eighth weekend of each term to be calculated by reference to the fact that the first weekend falling after school resumes each term is to be regarded as the first weekend of that term;
(b)During each short school holiday for a period of seven consecutive days, the days to be agreed between the parties but failing agreement to be from 9.00 am Saturday until 9.00 am the following Saturday in the first week of…

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: DONALD & DONALD [2012] FMCAfam 876
Case: [2012] FMCAfam 876
Decision Date: 30 August 2012

CaseChat Overview and Summary

In the case of Donald & Donald, the parties were engaged in a dispute over the care and custody of their three children, born in 1996, 1999, and 2000. The matter was heard in the Family Court of Australia, where the primary concern was to determine the living arrangements and access rights for the two younger children. The mother sought sole parental responsibility for the children, while the father contested this and proposed various contact arrangements.

The court was required to consider the best interests of the children and the welfare principle as outlined in the Family Law Act. Key issues included the primary residence of the children, the allocation of parental responsibility, and the scheduling of parenting time. The court had to balance the rights and responsibilities of both parents in ensuring the children's physical, emotional, and educational needs were met.

The court found that the best interests of the children were served by awarding sole parental responsibility to the mother, who would reside with the children in Tasmania during 2013. The father was granted specific visitation rights, including regular weekend visits during school terms and extended periods during school holidays. The court also imposed conditions to ensure the father's fitness to care for the children, including restrictions on alcohol and marijuana use. Both parents were mandated to attend a parenting course and maintain open communication regarding the children's welfare and education. The court concluded with detailed orders to facilitate the agreed parenting arrangements and dismissed all other applications.

Orders

Orders of the court

All previous orders in respect of the child [X] born [in] 1996 are discharged.

The two younger children of the marriage [Y] born [in] 1999 and [Z] born [in] 2000 (hereinafter referred to as “the children”) live with the mother and she have sole parental responsibility for them.

The mother be permitted to live with the children in [P] in the state of Tasmania during 2013 from 20 December 2012 until 20 December 2013.

The children spend time with their father as follows:

(a) During school terms, commencing with the fourth term of 2012, whilst the children are living in South Australia, on four weekends each term between 10.00 am Saturday until 4.00 pm the following Sunday, the weekends to be agreed between the parties but failing agreement to be the second, fourth, sixth and eighth weekend of each term to be calculated by reference to the fact that the first weekend falling after school resumes each term is to be regarded as the first weekend of that term;

(b) During each short school holiday for a period of seven consecutive days, the days to be agreed between the parties but failing agreement to be from 9.00 am Saturday until 9.00 am the following Saturday in the first week of each such school holiday;

(c) During the end of year school holiday for two periods of seven consecutive days, the days to be agreed between the parties but failing agreement to be 9.00 am on Saturday until 9.00 am the following Saturday in the second and fifth week of the 2012/2013 holiday period and each alternate year thereafter and from 9.00 am Saturday until 9.00 am on the following Saturday in the first and fourth week of the 2013/2014 holiday period and each alternate year thereafter.

The intention of order 4(c) hereof is that the children will spend alternate periods of Christmas with each parent (unless the parties agree otherwise) with the children spending the period of Christmas 2012 with the father and the period of Christmas 2013 with the mother. However this provision and the provisions contained in order 4(a) will be suspended during the period the mother and the children are residing outside of South Australia pursuant to order (3) hereof.

Whilst the children are residing outside of South Australia, in order to give effect to order 4(b) hereof the mother is to book and pay for the children’s necessary air travel between Launceston Adelaide and return for the school holiday period at the end of the first and third term of 2013 and advise the father in writing of these arrangements at least twenty eight days prior to the date of the children’s departure.

Whilst the children are residing outside of South Australia, in order to give effect to order 4(b) hereof the father is to book and pay for the children’s necessary air travel between Launceston Adelaide and return for the school holiday period at the end of the second term of 2013 and advise the mother in writing of these arrangements at least twenty eight days prior to the date of the children’s departure.

The father have telephone communication with the children at times to be agreed between the parties and failing agreement to be once per week at 7.00 pm each Wednesday with the time to be calculated by reference to the time zone the children are in at the relevant time and with the father to make the call to the mother’s telephone number.

The mother and father shall:

(a) Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;

(b) Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and

(c) Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.

10.

The mother authorise each the school attended by the children from time to time to give the father all necessary information concerning the children’s educational progress and other related activities and supply him with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the father).

11.

The father be restrained and an injunction issue restraining his from consuming marijuana or consuming alcohol to excess during any period the children are in his care or twenty four hours beforehand.

12.

The parties each attend a Kids R First parenting course at their own respective expense, but not at the same time, with each to complete the course by the end of 2013.

13.

In order to give effect to these orders the children be exchanged between the parties at a location to be agreed be the parties and failing agreement to be at the [G] Police Station.

14.

All applications be otherwise dismissed.

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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