Garth and Hope - [2008] FMCAfam 104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARTH & HOPE

[2008] FMCAfam 104

FAMILY LAW – Children aged 11 & 9 – mother lives in Adelaide – father lives in Brisbane – trial of children living in Brisbane – undertaken in final term of 2007 – whether trial should be extended – evidence of family consultant.

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

Garth & Hope (No.1) [2007] FMCAfam 677

Applicant:

MR GARTH

Respondent:

MS HOPE

File number:

ADM 3970 of 2006

Judgment of:

Brown FM

Hearing date:

21 January 2008

Date of last submission:

21 January 2008

Delivered at:

Adelaide

Delivered on:

24 January 2008

REPRESENTATION

Counsel for the Applicant:

Mr P. Baston by direct brief

Solicitors for the Applicant:

Self represented

Counsel for the Respondent:

Mr MA Boehm

Solicitors for the Respondent:

Christopher Ganzis & Co

Counsel for the Independent Children’s Lawyer:

Mr G Hemsley

Independent Children’s Lawyer:

Mr G Hemsley

ORDERS

That until further or other order:

The parties have equal shared parental responsibility for the children [Q] born in 1996 and [B] born in 1998.
The orders of the Family Court made on 8 March 2005 be suspended and order 10 of the orders of 28 September 2007 be discharged.
The children live with the father in Brisbane.
The children spend time with the mother during school holidays as follows:
(1)In Adelaide between 20 March 2008 (Maundy Thursday) and 24 March 2008 (Easter Monday);
(2)In Adelaide between 5 April 2008 and 13 April 2008;
(3)In Adelaide between 28 June 2008 and 8 July 2008; and
(4)In Adelaide between 20 September 2008 and 30 September 2008;
With the father to be responsible for booking and paying for all the children’s necessary costs of travel pursuant to this order but not the costs involved of the children being accompanied and advise the mother in writing of the arrangements for such travel 14 days in advance of the date of departure for the travel.
The children spend time with the mother in each Queensland school term as follows:
(1)In Brisbane for one weekend from Friday afternoon until Sunday evening on the third weekend of each term.
(2)In Adelaide for one weekend in the second and third Queensland school terms from Thursday afternoon until Sunday evening the weekend to be agreed between the parties and failing agreement to be the sixth weekend of each school term; and
The father to be responsible for the mother’s costs of travel to Brisbane but not her accommodation expenses to see the children pursuant to order 5(a) hereof.
The mother be responsible for the children’s costs of travel pursuant to order 5(b) hereof.
The children spend time with the mother in Queensland from 10:00am on Sunday 27 January 2008 until 5:00pm on Tuesday 29 January 2008 with handover and collection to be agreed between the parties.
The children be permitted to fly unaccompanied for any period of travel envisaged by these orders. The parties to each give the other 14 days notice in writing 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.

Continue reading Garth and Hope

Details

AGLC: Garth and Hope [2008] FMCAfam 104
Case: [2008] FMCAfam 104
Decision Date: 24 January 2008

CaseChat Overview and Summary

Garth and Hope were the parents of two children, born in 1996 and 1998. They appeared before the Family Court of Australia to resolve issues concerning the care, control, and upbringing of their children. The parents sought an arrangement that would ensure the children's welfare while addressing their individual needs and preferences. The court had to decide on the allocation of parental responsibility, living arrangements, and visitation schedules that would best serve the children's interests.

The court examined the legal principles under the Family Law Act, focusing on the best interests of the children. The court considered the views of the children, the parents' capacity to provide for the children's needs, and the need for stability and continuity in the children's lives. The court also reviewed the family report and the recommendations of the Independent Children’s Lawyer.

The Family Court of Australia determined that it was in the best interests of the children to have equal shared parental responsibility with their parents. The court suspended previous orders and discharged certain conditions previously imposed. The children would primarily reside with the father in Brisbane, with the mother having visitation rights during school holidays and Queensland school terms. The court mandated specific communication arrangements, travel logistics, and the responsibility for travel costs. The court also required updates from the family report writer and the Independent Children’s Lawyer to ensure the children's ongoing welfare.

The court's final orders established a balanced parenting arrangement, detailed the visitation schedule, and outlined the responsibilities of each parent concerning the children's care and travel. The orders also set a date for a further final hearing and mandated the provision of reasons for judgment to the parties involved.

Orders

Orders of the court

That until further or other order:

The parties have equal shared parental responsibility for the children [Q] born in 1996 and [B] born in 1998.

The orders of the Family Court made on 8 March 2005 be suspended and order 10 of the orders of 28 September 2007 be discharged.

The children live with the father in Brisbane.

The children spend time with the mother during school holidays as follows:

(1) In Adelaide between 20 March 2008 (Maundy Thursday) and 24 March 2008 (Easter Monday);

(2) In Adelaide between 5 April 2008 and 13 April 2008;

(3) In Adelaide between 28 June 2008 and 8 July 2008; and

(4) In Adelaide between 20 September 2008 and 30 September 2008;

With the father to be responsible for booking and paying for all the children’s necessary costs of travel pursuant to this order but not the costs involved of the children being accompanied and advise the mother in writing of the arrangements for such travel 14 days in advance of the date of departure for the travel.

The children spend time with the mother in each Queensland school term as follows:

(1) In Brisbane for one weekend from Friday afternoon until Sunday evening on the third weekend of each term.

(2) In Adelaide for one weekend in the second and third Queensland school terms from Thursday afternoon until Sunday evening the weekend to be agreed between the parties and failing agreement to be the sixth weekend of each school term; and

The father to be responsible for the mother’s costs of travel to Brisbane but not her accommodation expenses to see the children pursuant to order 5(a) hereof.

The mother be responsible for the children’s costs of travel pursuant to order 5(b) hereof.

The children spend time with the mother in Queensland from 10:00am on Sunday 27 January 2008 until 5:00pm on Tuesday 29 January 2008 with handover and collection to be agreed between the parties.

The children be permitted to fly unaccompanied for any period of travel envisaged by these orders. The parties to each give the other 14 days notice in writing of the necessary travel arrangements involving the children and advise the other when the children have departed from the relevant airport and the time of their anticipated arrival in either Brisbane or Adelaide.

10.

The mother have liberal telephone, email and text message communication with the children when they are in the father’s care but in addition telephone communication at one specific time each week the time to be agreed between the parties and failing agreement on each Wednesday between 6:00pm and 7:00pm Queensland time.

11.

The father have liberal telephone, email and text message communication with the children when they are in the mother’s care.

12.

The father’s undertaking of 28 September 2007 be discharged.

13.

The further final hearing of this matter be scheduled for 9 and 10 October 2008 at 10:00am.

14.

Dr Savage, the family report writer herein update the family report during the period the children are in the mother’s care pursuant to order 4(d) hereof and in particular interview each of the children concerned and ascertain any further views they may have in regards to future arrangements for their care.

15.

The Independent Children’s Lawyer explain the import of the orders to the children concerned in any manner he deems appropriate, which may include the assistance of Dr Savage if he deems appropriate in either the end of the first or second term holidays.

16.

Both parties file and serve any further affidavit on which he or she seeks to rely on at trial on or before close of Registry filing on 26 September 2008.

17.

The reasons for judgment are to be transcribed and provided to each of the parties.

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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