EMD and FYM - [2004] FMCAfam 694

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EMD & FYM

[2004] FMCAfam 694

FAMILY LAW – Children – contact – residence – parenting capacity – family violence – children subjected to numerous changes in residence – children need stability – where mother suffers major depression – mother’s future arrangements uncertain – father has more settled future arrangements – where parents have poisonous relationship – contact arrangements structured so that parents do not come into contact with each other.

Family Law Act 1975, ss.60, 62, 68
Real Property Act 1900, s.87

R and R: Children's wishes (2000) FLC 93-3000
H v W (1995) FLC 92-598

Applicant:

E M D

Respondent:

F Y M

File No:

PAM5732 of 2003

Delivered on:

7 December 2004

Delivered at:

Parramatta

Hearing dates:

30 & 31 August, 13, 14 & 15 September 2004

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Ms A. Rees

Solicitors for the Applicant:

Photios Vouroudis & Co.

Counsel for the Respondent:

Mr J. Heazlewood

Solicitors for the Respondent:

Higgins & Higgins

Counsel for the Children’s Representative:

Ms. R Druitt

Solicitors for the Children’s Representative:

Legal Aid Commission of NSW

ORDERS

The father and the mother have joint responsibility for making decisions about the long term care, welfare and development of the said children Nicola (not her real name) born in 1995 and Luke (not his real name) born in 1997.
The father and the mother have sole responsibility for making decisions as to the day to day care, welfare and development of the said children whilst they are in their care.
“The children” Nicola born in 1995 and Luke born in 1997 reside with the mother as follows:
(a)Each alternate week from the end of school on Thursday to the start of school on the Monday immediately following.
(b)For one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
(c)On the children’s birthdays as follows:
(i)If the birthdays fall on a school day, from after school the evening prior to their birthday until the start of school the day of the birthday in years ending in an even number. In years ending in an odd number from after school on the children’s birthday until the start of school the next day.
(ii)If the children’s birthdays fall on a weekend whilst they are in their father’s care, for four hours from 9 am to 1 pm.
(d)For Mother’s Day in each year if it falls on a weekend whilst the children are in their father’s care, from 9 am to 5 pm.
(e)By telephone each Wednesday night between 7 and 7.30. The children are to call the mother.
(f)At such other times as agreed between the parties.
(g)Notwithstanding the above orders, during the forthcoming December/January school holidays for three weeks commencing 10 am…

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 EMD and FYM

Details

AGLC: EMD and FYM [2004] FMCAfam 694
Case: [2004] FMCAfam 694
Decision Date: 7 December 2004

CaseChat Overview and Summary

EMD and FYM were the parties involved in a dispute over the care and custody of their two children, Nicola and Luke, born in 1995 and 1997 respectively. The matter was heard and determined by the Family Court of Australia. The parents sought to establish a detailed parenting plan to govern the children's living arrangements, contact, and decision-making responsibilities.

The court was required to determine the allocation of the children's residence, the specific arrangements for school holidays, contact arrangements, and various other issues relating to the children's care. This included deciding on the allocation of decision-making responsibilities, holiday schedules, contact times, and the parents' obligations regarding the children's health, education, and welfare.

The court considered the best interests of the children as the paramount concern, taking into account the parents' ability to provide for the children's needs, the children's wishes, and the importance of both parents maintaining a meaningful relationship with the children. The court ordered joint responsibility for long-term decision-making, with sole responsibility for day-to-day care when the children are in their care. The court also detailed specific residence and contact arrangements, including alternating weekly schedules, holiday care, birthday arrangements, and contact times. Additionally, the court made orders concerning the parents' obligations regarding the children's health, education, and welfare, as well as specific directives for the father's anger management program and the mother's psychiatric treatment.

The court's final orders provided a comprehensive parenting plan to ensure the children's welfare and to facilitate their relationship with both parents. The orders covered residence, contact, decision-making, health and education responsibilities, and various other aspects of the children's care. The court's decision aimed to provide a stable and supportive environment for the children while promoting their relationship with both parents.

Orders

Orders of the court

The father and the mother have joint responsibility for making decisions about the long term care, welfare and development of the said children Nicola (not her real name) born in 1995 and Luke (not his real name) born in 1997.

The father and the mother have sole responsibility for making decisions as to the day to day care, welfare and development of the said children whilst they are in their care.

“The children” Nicola born in 1995 and Luke born in 1997 reside with the mother as follows:

(a) Each alternate week from the end of school on Thursday to the start of school on the Monday immediately following.

(b) For one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.

(i) If the birthdays fall on a school day, from after school the evening prior to their birthday until the start of school the day of the birthday in years ending in an even number. In years ending in an odd number from after school on the children’s birthday until the start of school the next day.

(ii) If the children’s birthdays fall on a weekend whilst they are in their father’s care, for four hours from 9 am to 1 pm.

(d) For Mother’s Day in each year if it falls on a weekend whilst the children are in their father’s care, from 9 am to 5 pm.

(e) By telephone each Wednesday night between 7 and 7.30. The children are to call the mother.

(f) At such other times as agreed between the parties.

(g) Notwithstanding the above orders, during the forthcoming December/January school holidays for three weeks commencing 10 am January 2005.

(h) Notwithstanding the terms of these orders the children shall be in the care of the mother:

(i) Form 10 am to 5 pm Christmas Day 2004;

(ii) From 2 pm Christmas Eve 2 pm Christmas Day in 2006 and each even numbered year.

(iii) From 2 pm Christmas Day to 2 pm Boxing Day in each odd numbered year.

(iv) For a period of time on the day of the birth of the mother’s child due to be born in December 2004 or at the request of the mother a day immediately following to enable the children to see the baby as soon as practicable at or shortly after the birth.

Notwithstanding the terms of these orders the children will be in their father’s care:

(a) On Father’s Day between 9 am and 5 pm;

(b) From 2 pm Christmas Day to 2 pm Boxing Day in 2006 and each later even numbered year, and

Weekend care by either party is suspended during school holidays.

Unless otherwise defined in these orders school holiday care by either party shall:

(a) Commence at 10 am;

(b) Conclude at 5 pm;

(c) Be calculated from the day after the last day of school until and including the day immediately before school resumes;

(d) Pupil free days are deemed to be part of school holidays;

(e) Years ending in a zero are defined as years ending in an even number.

After each school holidays, the mother shall have residence of the children on the first weekend after school has resumed if the children have been with her during the first half of the school holidays and on the second weekend if the children have been in her care in the second half of the school holidays.

If the mother’s weekend residence occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Monday.

If either party intends to take the children on holidays or take the children away from their normal place of residence for a period of in excess of 48 hours they shall give the other party prior written notice of the intended date of departure; the proposed destination and address, mobile telephone or landline number where the children can be contacted.

10.

During school holidays the children shall have telephone contact with the other parent between 7 and 7.30 pm each Wednesday. The parent with whom the children are then residing shall cause the children to telephone the other parent.

11.

Once the children start competition sport, both parties are responsible for ensuring that the children attend that sporting commitment whilst the children are in their respective care and the other parent is restrained from attending.

12.

Each of the parties is entitled to obtain directly from any school attended by the children or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.

13.

Each of the parties shall do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the said children including any need for hospitalisation.

14.

Within 28 days the father shall enrol in an anger management program. Thereafter the father shall complete the program commencing as soon as a placement is offered to him. He shall give the children’s representative a copy of his certificate of completion.

15.

The parties shall agree on a family general medical practitioner who will be the children’s primary treating doctor. To the extent possible the parties shall ensure that the children attend their agreed treating doctor accompanied by one of the parties, except in the case of an emergency.

16.

Neither party shall enrol the children in a continuing activity that requires the children to attend that activity during periods when the children are in the other party’s care unless both parents agree that the children should participate in it.

17.

Both parties give each other not less than twenty-one (21) days notice in writing of their intention to change address.

18.

Both parties are restrained from using marijuana while the children are in their care.

19.

Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used for telephone contact or otherwise in relation to matters concerning the children only.

20.

For the purpose of changeover, other than when the children are being collected from or returned to school, the children shall be delivered at the commencement of the periods when they are to reside with the mother to the home of M J S at Leura one hour prior to changeover and returned to her residence one hour prior to the end of the children’s time with the mother. The party delivering the children to M J S’s home shall leave immediately upon delivering the children so as to ensure they do not come into contact with the other party.

21.

The father shall provide a minimum of one complete outfit for each of the children to wear during weekends with their mother and a minimum of two complete outfits for each of the children during school holidays. The mother is to ensure that these clothes are returned to the father at the conclusion of her residence period.

22.

The father shall ensure that the children are able to take with them any personal items that they may ordinarily use on a daily basis when staying with their mother and she shall ensure that those personal items are returned when the children returned to their father.

23.

Both parties are restrained from:

(a) Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.

(b) Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.

(c) Contacting or attempting to contact the children by any direct or indirect means except as provided for in these orders.

24.

The mother shall do all things necessary to obtain an appointment with a treating psychiatrist as soon as possible and thereafter follow the reasonable recommendations of that psychiatrist in respect of her treatment including taking any prescribed medication.

25.

The mother shall do all things needed to ensure that M J S contacts the father and informs him of her baby’s birth on the day that the child is born. The father is to cause the children to be delivered to M J S’s home so that the children can have contact with their mother and see the baby.

26.

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.

27.

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

28.

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

29.

All outstanding applications are 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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