FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARTH & HOPE | [2007] FMCAfam 677 |
| FAMILY LAW – Children aged 11 and 9 – mother lives in Adelaide – father lives in Brisbane – final orders made in August 2003 – significant level of conflict between parties and extensive history of litigation – father wishes children to live with him in Brisbane on trial basis for one term in late 2007 or early 2008 – father asserts this is the desire of the children concerned – trial supported by court appointed expert – mother opposes trial and the court entertaining father’s application without any significant change of circumstances – rule in Rice & Asplund – best interests – should children be independently represented. |
| Family Law Act 1975 - ss.60B, 60C, 60CA, 60CC, 61DA |
| Rice & Asplund (1979) FLC 90-725 D & Y (1995) FLC 92-581 at 81,764 CDJ v VAJ (1998) FLC 92-828 King & Finneran (2001) FLC 93-079 Bolitho & Cohen (2005) FLC 93-224 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 Re K (1994) FLC 92-461 |
| Applicant: | MR GARTH |
| Respondent: | MS HOPE |
| File Number: | ADM3970 of 2006 |
| Judgment of: | Brown FM |
| Hearing dates: | 23 and 24 August 2007 |
| Date of Last Submission: | 19 September 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 28 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baston |
| Solicitors for the Applicant: | Direct brief |
| Counsel for the Respondent: | self represented |
ORDERS
The children Q born in 1996 and B born in 1998 (hereinafter referred to as “the children”) be independently represented in these proceedings and to this end the Director of the Legal Services Commission of South Australia is requested to make arrangements for the appropriate representation of these children as soon as is practicable.
UPON THE UNDERTAKING of the father that he will not seek an assessment of child support from the mother during the period of the trial referred to in order (3) hereof.
UNTIL FURTHER OR OTHER ORDER IT IS ORDERED:
The parties have equal shared parental responsibility for the children.
The children live with the father in Brisbane for a trial period to coincide with the fourth term of the Queensland school year in 2007 being from 8 October until 14 December 2007.
During the trial period referred to in order (3) hereof the children spend time with the mother as follows:
(a)In Brisbane for two weekends the weekends to be agreed between the parties and failing agreement to be on the third and seventh weekend of the fourth Queensland school term in 2007;
(b)For the first four weeks in the Christmas school holiday in 2007/2008 to commence on 15 December 2007.
The time specified in order (4)(a) is to take place in Queensland and the time specified in order 4(b) is to take place in South Australia.
The mother is to have liberal telephone communication with the children at all reasonable times when they are in the father’s care.
The father be responsible for all costs associated…
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- AGLC
- Garth and Hope [2007] FMCAfam 677
- Case
- [2007] FMCAfam 677
- Decision Date
CaseChat Overview and Summary
The court had to decide on several critical legal issues, including the allocation of parental responsibility, the living arrangements for the children, and the specifics of the contact arrangements between the children and their non-residential parent. It was also necessary to determine the logistics of the trial period, including the children's schooling and the financial responsibilities of each parent during this period.
In reaching its decision, the court considered the welfare and best interests of the children as the paramount concern. It concluded that the children should live with the father in Brisbane for a trial period that coincided with the fourth term of the Queensland school year in 2007. The court also ruled that the parents share equal responsibility for the children's upbringing and that the children should spend specific periods with their mother, including two weekends and the first four weeks of the Christmas school holidays. The court further directed that the mother should have liberal telephone communication with the children during the trial period. Additionally, the father was ordered to bear the costs associated with the mother's time with the children and ensure all necessary school fees were paid during the trial period.
The final orders of the court included the independent representation of the children, equal shared parental responsibility for the parents, specific living arrangements for the children during the trial period, detailed visitation schedules for the mother, and the father's financial responsibilities. The trial period was set to end on 14 December 2007, after which the children were to live with their mother in Adelaide, with further contact with the father during the final two weeks of the Christmas school holiday period.
Orders
Orders of the court
1.
The children Q born in 1996 and B born in 1998 (hereinafter referred to as “the children”) be independently represented in these proceedings and to this end the Director of the Legal Services Commission of South Australia is requested to make arrangements for the appropriate representation of these children as soon as is practicable.
UPON THE UNDERTAKING of the father that he will not seek an assessment of child support from the mother during the period of the trial referred to in order (3) hereof.
UNTIL FURTHER OR OTHER ORDER IT IS ORDERED:
2.
The parties have equal shared parental responsibility for the children.
3.
The children live with the father in Brisbane for a trial period to coincide with the fourth term of the Queensland school year in 2007 being from 8 October until 14 December 2007.
4.
During the trial period referred to in order (3) hereof the children spend time with the mother as follows:
(a) In Brisbane for two weekends the weekends to be agreed between the parties and failing agreement to be on the third and seventh weekend of the fourth Queensland school term in 2007;
(b) For the first four weeks in the Christmas school holiday in 2007/2008 to commence on 15 December 2007.
5.
The time specified in order (4)(a) is to take place in Queensland and the time specified in order 4(b) is to take place in South Australia.
6.
The mother is to have liberal telephone communication with the children at all reasonable times when they are in the father’s care.
7.
The father be responsible for all costs associated with the mother spending time with the children pursuant to order (4) hereof, however the father is not required to ensure the children are accompanied by an adult for the purposes of such travel.
8.
The father be responsible for the payment of all the children’s school fees and other costs associated with the trial period referred to in order (4) whilst the children are living in Queensland and he ensure that all necessary fees are paid to ensure that the children retain a place at Sxxx School, South Australia during the aforesaid trial period.
9.
Dr Savage, the family report writer herein update her family report dated 16 August 2007 during the period of time the children are in the mother’s care pursuant to order (4) and in particular interview each of the children concerned and ascertain their views regarding the trial period referred to in order (3) and any other matters she considers relevant.
10.
The further hearing of this matter be fixed for 21 January 2008 in Adelaide and upon the completion of the trial period referred to in order 4 the children live with the mother in Adelaide.
11.
The children spend time with the father in the final two weeks of the 2007/2008 Christmas school holiday period.
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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