G and D - [2002] FMCAfam 42

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & D

[2002] FMCAfam 42

FAMILY LAW – Children – contact – no risk to the child – application for supervised contact refused – supervised contact would hinder the child’s relationship with her father – section 68F(2) Family Law Act 1975.

Applicant:

G S G

Respondent:

L A D

File No:

ZP353 of 2000

Delivered on:

23 January 2002

Delivered at:

Parramatta

Hearing Date:

16 January 2002

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Ms Susan Davitt

Solicitors for the Applicant:

Legal Aid Commission of NSW
Level 2, 25 Smart Street
FAIRFIELD NSW 2165
DX 25068 FAIRFIELD

Solicitor Advocate for the Respondent:

Mr Steven Stojanovic

Solicitors for the Respondent:

Stojanovic Solicitors
4/220 Northumberland Street
LIVERPOOL NSW 2170

ORDERS

That the parties shall have joint responsibility for the long-term care, welfare and development of K B G born 2 October 1995 (“the child”).
That all prior orders for contact are discharged.
That the father shall have contact with the child as follows commencing Saturday, 26 January 2002:
(a)On Saturday 26 January 2002 at Central West Contact Service ("the service") from 3.30pm until 5.30pm. In the event that the service cannot facilitate contact this weekend it shall take place the following Saturday.
(b)After one session of contact at the service each Saturday from 9am to 5pm;
(c)Commencing 9 March 2002 from 9am Saturday until 5pm Sunday each alternate weekend;
(d)Once alternate weekend contact commences Saturday-only contact ceases;
(e)For one half of each New South Wales school holiday, 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.
That the first period of school holiday contact shall commence in the June/July 2002 school holidays;
(a)From 5pm on Christmas Eve until 2pm on Christmas Day 2002 and each alternate year thereafter and from 2pm on Christmas Day until 6pm Boxing Day 2003 and each alternate year thereafter;
(b)For the weekend that includes Father’s Day, and
(c)Such other times as agreed between the parties.
That commencing during the June/July 2002 school holiday period alternate weekend contact is suspended during school holidays and for the weekend that includes Mother’s Day.
For the purpose of contact, the mother is to ensure that the child is delivered to the Central West Contact Service no later than 15 minutes prior to the start of contact. The father is to collect the child from the Central West Contact Service at the start of contact.
That at the conclusion of contact the father is to return the child to the mother’s home.
That when returning the child at the conclusion of contact, the father shall not enter the grounds of the mother’s property and shall indicate his arrival by either arranging for another person to take the child in or by tooting the car horn.
After six months of regular weekend contact occurring at his home the father shall advise the…

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 G and D

Details

AGLC: G and D [2002] FMCAfam 42
Case: [2002] FMCAfam 42
Decision Date: 23 January 2002

CaseChat Overview and Summary

G and D involved a dispute over the care, welfare, and development of their child, K B G. The matter was heard in the Family Court of Australia. The parents, G and D, were required to determine the specific arrangements for the child’s contact and care, including visitation schedules, contact service usage, and the division of responsibilities during school holidays. The court was also tasked with ensuring that the child’s welfare was prioritised in all decisions.

The legal issues before the court included the establishment of a fair and balanced contact schedule that allowed the child to maintain a relationship with both parents while ensuring their safety and wellbeing. The court needed to consider the specific needs of the child, the parents' ability to cooperate, and the practicalities of implementing the proposed contact arrangements. Additionally, the court had to address how to manage the transition of contact periods during school holidays and ensure that the child's routine was not unduly disrupted.

The court carefully evaluated the evidence presented by both parties and the recommendations of the Family Consultant. It determined that joint responsibility for the child’s long-term care, welfare, and development was in the child's best interest. The court devised a detailed contact schedule that provided for regular weekend and school holiday contact, with specific guidelines for the use of the Central West Contact Service and the return of the child to the mother’s home. The court also mandated attendance at a post-separation parenting program to aid communication between the parents. The orders reflected a balanced approach, aiming to foster a positive relationship between the child and both parents while safeguarding the child's welfare.

The final orders established a comprehensive framework for the care and contact arrangements for K B G, incorporating detailed schedules for weekend and school holiday contact, the use of the contact service, and the handover procedures. The court also included provisions for the return of subpoenaed documents and the collection of exhibits, ensuring compliance with legal obligations. All other pending applications were dismissed, finalising the court's intervention in this matter.

Orders

Orders of the court

That the parties shall have joint responsibility for the long-term care, welfare and development of K B G born 2 October 1995 (“the child”).

That all prior orders for contact are discharged.

That the father shall have contact with the child as follows commencing Saturday, 26 January 2002:

(a) On Saturday 26 January 2002 at Central West Contact Service ("the service") from 3.30pm until 5.30pm. In the event that the service cannot facilitate contact this weekend it shall take place the following Saturday.

(b) After one session of contact at the service each Saturday from 9am to 5pm;

(d) Once alternate weekend contact commences Saturday-only contact ceases;

(e) For one half of each New South Wales school holiday, 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.

That the first period of school holiday contact shall commence in the June/July 2002 school holidays;

(a) From 5pm on Christmas Eve until 2pm on Christmas Day 2002 and each alternate year thereafter and from 2pm on Christmas Day until 6pm Boxing Day 2003 and each alternate year thereafter;

(b) For the weekend that includes Father’s Day, and

That commencing during the June/July 2002 school holiday period alternate weekend contact is suspended during school holidays and for the weekend that includes Mother’s Day.

For the purpose of contact, the mother is to ensure that the child is delivered to the Central West Contact Service no later than 15 minutes prior to the start of contact. The father is to collect the child from the Central West Contact Service at the start of contact.

That at the conclusion of contact the father is to return the child to the mother’s home.

That when returning the child at the conclusion of contact, the father shall not enter the grounds of the mother’s property and shall indicate his arrival by either arranging for another person to take the child in or by tooting the car horn.

After six months of regular weekend contact occurring at his home the father shall advise the mother whether he will agree to a change in the place for changeover at the start of contact. If the contact is proceeding well the father shall not unreasonably with-hold his consent.

10.

If the contact occurs on a date adjacent to a public holiday contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday and if it is a Monday it shall conclude at the usual time on the Monday. This order is operative after the June/July 2002 school holidays.

11.

School holiday contact:

(a) SHALL commence at 9.00am.

(b) SHALL conclude at 3.00pm.

(c) WILL 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 school holidays.

12.

THAT 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.

13.

After a period of school holiday contact, contact shall resume on the first weekend after school has resumed if the Father has exercised contact during the first half of the holidays AND on the second weekend if the Mother has exercised contact during the second half of the holidays.

14.

At the expiration of four months from the date of these orders the parties are to attend a post separation parenting program to facilitate improved communication between them. In the event that they cannot agree which program to attend they shall both forthwith attend Unifam at Parramatta for assessment and advice by the coordinator. Thereafter they shall attend and complete any program nominated by the coordinator.

15.

The party who caused any subpoena to issue shall return the subpoenaed documents within 7 days.

16.

All exhibits to be collected at the expiration of 28 days.

17.

All outstanding applications are 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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