Fisk and Raby and Ors - [2009] FMCAfam 483

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FISK & RABY & ORS

[2009] FMCAfam 483

FAMILY LAW – Appeal – application of stay in operation of children’s orders pending hearing of appeal – matters to be considered.

Fauna Holdings Pty Ltd and Others v Mitchell (2000) FLC 93-053
Clemett v Clemett (1981) FLC 91-013

Applicant:

MS FISK

Respondent:

MR RABY

Other Parties:

MR R & MS R

File number:

BRC 7595 of 2008

Judgment of:

Brown FM

Hearing date:

9 April 2009

Date of last submission:

9 April 2009

Delivered at:

Adelaide

Delivered on:

9 April 2009

REPRESENTATION

Counsel for the Applicant:

Ms T.C. Lewis

Solicitors for the Applicant:

Norman Waterhouse Lawyers

Counsel for the Respondent:

Ms Bailey

Solicitors for the Respondent:

Websters Lawyers

Counsel for the Other Parties:

Ms Bosko

ORDERS

Order 7(a) of the orders made on 6 April 2009 be stayed and in lieu thereof the following order be made:
The father spend time with the children [X] born in 2002, [Y] born in 2003 and [Z] born in 2006 on alternate Saturdays from 10:00am until 5:30pm commencing 11 April 2009.
Order 9 of the orders made on 6 April 2009 be stayed and in lieu thereof the following order be made:
The father’s time spent with the children be subject to his availability as a result of his employment the onus which shall be on the father to provide written proof of his unavailability to spend time with the children due to his work commitments as soon as practicable and where necessary the father be permitted to alter arrangements for his time spent with the children by giving the mother notice in writing one week prior to the arranged time for him to spend time with the children such that he might make up any missed weekends on the following weekend where necessary.
Order 10 of the orders made on 6 April 2009 be stayed and in lieu thereof the following order be made:
The father communicate with the children each Wednesday at 5:30pm (Australian Central Time) with the mother to ensure the children ring the father on a landline number to be provided to her.
The matter be adjourned for further consideration and if necessary to allocate a date for final hearing on 19 May 2009 at 9:30am when it is anticipated the independent children’s lawyer will be appointed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

BRC 7595 of 2008

MS FISK

Applicant

And

MR RABY

Respondent

MR R & MS R

Other Parties

REASONS FOR JUDGMENT

(delivered ex-tempore)

The matter of Raby & Fisk is listed before me this morning. The applicant in the proceedings is Mr Raby and the respondent is Ms Fisk.
They are respectively the father and mother of three children: [X], who was born in 2002; [Y], who was born in 2003; and…

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 Fisk and Raby and Ors

Details

AGLC: Fisk and Raby and Ors [2009] FMCAfam 483
Case: [2009] FMCAfam 483
Decision Date: 9 April 2009

CaseChat Overview and Summary

The matter before the Family Court was a dispute between Fisk and Raby and other respondents regarding the custody and care of three children, [X], [Y] and [Z], born in 2002, 2003 and 2006 respectively. The court was tasked with modifying existing orders concerning the children's time spent with their father, communication with him, and the procedural aspects of the case. The primary concern was ensuring the children's welfare and best interests while considering the father's work commitments and the parents' respective roles in the children's lives.

The central legal issues involved the interpretation and modification of existing court orders regarding the father's visitation rights, the communication between the children and their father, and the procedural framework for the case's ongoing management. Specifically, the court had to balance the father's employment obligations with his parental responsibilities and determine appropriate measures to facilitate consistent communication between the children and their father.

In addressing these issues, the court emphasised the paramount importance of the children's welfare and the need for a flexible and practical approach to visitation and communication arrangements. The court modified the existing orders to accommodate the father's work schedule while ensuring that the children's right to maintain a relationship with their father was upheld. The new orders allowed for alternate weekend visits from 10:00am until 5:30pm, with provisions for the father to provide written proof of unavailability due to work commitments and to adjust arrangements with one week's notice. Furthermore, the court mandated weekly phone calls between the children and their father, facilitated by the mother, to maintain consistent communication. The matter was adjourned to allow for further consideration and the appointment of an independent children's lawyer.

The final orders reflected a compromise that aimed to respect the father's employment while ensuring the children's continued relationship with him. The court's decision was grounded in the principles of the children's best interests and the need for a cooperative approach between the parents.

Orders

Orders of the court

Order 7(a) of the orders made on 6 April 2009 be stayed and in lieu thereof the following order be made:

The father spend time with the children [X] born in 2002, [Y] born in 2003 and [Z] born in 2006 on alternate Saturdays from 10:00am until 5:30pm commencing 11 April 2009.

Order 9 of the orders made on 6 April 2009 be stayed and in lieu thereof the following order be made:

The father’s time spent with the children be subject to his availability as a result of his employment the onus which shall be on the father to provide written proof of his unavailability to spend time with the children due to his work commitments as soon as practicable and where necessary the father be permitted to alter arrangements for his time spent with the children by giving the mother notice in writing one week prior to the arranged time for him to spend time with the children such that he might make up any missed weekends on the following weekend where necessary.

Order 10 of the orders made on 6 April 2009 be stayed and in lieu thereof the following order be made:

The father communicate with the children each Wednesday at 5:30pm (Australian Central Time) with the mother to ensure the children ring the father on a landline number to be provided to her.

The matter be adjourned for further consideration and if necessary to allocate a date for final hearing on 19 May 2009 at 9:30am when it is anticipated the independent children’s lawyer will be appointed.

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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