Finn and Finn - [2011] FMCAfam 1135

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FINN & FINN

[2011] FMCAfam 1135

FAMILY LAW – Parenting – interim hearing – family report recommendations – father to have unsupervised time – dispute as to changeover location and length of time to be spent.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 65DAA, 68L

Goode & Goode (2006) FLC 93-286

Applicant:

MR FINN

Respondent:

MS FINN

File Number:

SYC 5733 of 2010

Judgment of:

Monahan FM

Hearing date:

15 August 2011

Date of Last Submission:

15 August 2011

Delivered at:

Sydney

Delivered on:

15 August 2011

REPRESENTATION

Counsel for the Applicant:

Not applicable

Solicitors for the Applicant:

Belgrave Lawyers Pty Ltd

Counsel for the Respondent:

Not applicable

Solicitors for the Respondent:

Drexler & Partners

Independent Children’s Lawyer:

Peter Baker Solicitors

ORDERS

The listing of this matter for mention hearing on 1 September 2011 be vacated.
Paragraphs three (3) to five (5) inclusive of the Minute of Consent Orders attached to the Orders made on 22 December 2011 be discharged.
The solicitors for the Respondent make, file and serve a Notice of Address for Service by not later than 4:00pm on 22 August 2011.
The Application in a Case filed by the Applicant on 4 May 2011 be dismissed.

AND THE COURT ORDERS, UNTIL FURTHER ORDER THAT:

The child X, born (omitted) 2010, (“the child”) spend unsupervised time with the Applicant as follows:
(a)from 17 August 2011 until 17 September 2011:
(i)on Wednesdays from 2:00pm to 4:00pm;
(ii)on Saturdays from 2:00pm to 4:00pm;
(iii)on Sundays from 1:00pm to 4:00pm; and
(b)from 18 September 2011 and thereafter:
(i)on Wednesdays from 2:00pm to 5:00pm;
(ii)on Saturdays from 2:00pm to 5:00pm; and
(iii)on Sundays from 1:00pm to 4:00pm.
For the purposes of paragraph five (5) herein, changeovers agree at such a place as may be agreed between the parties and, failing agreement, as follows:
(a)on Wednesdays and Saturdays, at (omitted) Supermarket in (omitted), NSW; and
(b)on Sundays, at a venue agreed between the parties within 48 hours of the date of these Orders and, failing agreement, at a Railway Station located on the (omitted) lines between (omitted) and Central (inclusive) nominated by the Respondent within 72 hours of the date of these Orders.

AND THE COURT NOTES THAT:

(A)Paragraphs four (4) and five (5) herein were made following an interim hearing.
(B)The Family Report of Ms R was released to the parties on 23 June 2011.
(C)The Respondent advised the Court that she proposes to file an Application seeking Orders allowing her to travel with the child to (country omitted).
(D)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“the Act”), 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Finn & Finn is approved pursuant to s.121(9)(g) of the Family Law Act 1975

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

Case: [2011] FMCAfam 1135
Decision Date

CaseChat Overview and Summary

This case involves an application filed by Mr. Finn (the father) seeking to vary the current interim parenting orders regarding his daughter, X, born in 2010. The father applied for unsupervised time with X, while Ms. Finn (the mother) opposed this request. The Federal Magistrates Court heard the matter and delivered a decision on the same day.

The legal issues before the court were the determination of the days and times for unsupervised time between the father and X, as well as the location of the changeovers. The court considered the submissions from both parties and the Independent Children's Lawyer, as well as the Family Report recommendations.

The court found that there was merit in both parties' proposals. The court decided that unsupervised time should occur on Wednesdays, Saturdays, and Sundays, as proposed by the father. However, the time spent would be two hours per session for the first four weeks, transitioning to three hours per session thereafter. The changeover locations were also determined, with changeovers on Wednesdays and Saturdays occurring in a specified location, while changeovers on Sundays would occur at a venue agreed upon by the parties within 48 hours, or at a railway station nominated by the mother within 72 hours.

The court's decision was based on the best interests of the child, taking into account the relevant statutory provisions and the Family Report recommendations. The court aimed to balance the father's work commitments with the need for adequate child support, while also considering the mother's reliance on public transport and the father's access to a motor vehicle.

In conclusion, the court made orders for the unsupervised time between the father and X, as well as the changeover locations, until further order. The court also dismissed the father's Application in a Case filed on 4 May 2011.

Orders