Garth and Hope (No.2) - [2008] FMCAfam 1304

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARTH & HOPE (No.2)

[2008] FMCAfam 1304

FAMILY LAW – Children aged 12 and 10 – final arrangements for care – mother lives in Adelaide – father lives in Brisbane – views of children – weight to be given to family report – children have lived in Brisbane for trial period – younger child expresses wish to return to live in Adelaide – older child wishes to remain living in Brisbane – separation of siblings – practical considerations – best interests.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Garth & Hope [2007] FMCAfam 677
Garth & Hope [2008] FMCAfam 104
D & S V (2003) FLC 93-137
Godfrey v Saunders 208 FLR 287

Applicant:

MR GARTH

Respondent:

MS HOPE

File Number:

ADM 3970 of 2006

Judgment of:

Brown FM

Hearing date:

9 October 2008

Date of Last Submission:

9 October 2008

Delivered at:

Adelaide

Delivered on:

9 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr Baston

Solicitors for the Applicant:

Scales & Partners

Counsel for the Respondent:

Mr Holland

Solicitors for the Respondent:

Christopher Ganzis & Co

Counsel for the Independent Children’s Lawyer:

Ms Du Barry

The Independent Children’s Lawyer

Graeme Hemsley

ORDERS

The parties have equal shared parental responsibility for the children [Q] born in 1996 and [B] born in 1998.
From the start of the school year in 2009 the child [Q] live with the father in Brisbane.
From the start of the school year in 2009 the child [B] live with the mother in Adelaide.
The aforesaid children spend time with one another and with each of their parents during school holidays as follows:
(a)so that the children spend one half of the end of year school holiday with their mother in South Australia being the first half in the school year ending in 2008 and each even ending year thereafter and the second half in the school year ending in 2009 and each odd ending year thereafter;
(b)so that the children spend one half of the end of year school holiday period together in Brisbane being the second half in the school year ending in 2008 and each even ending year thereafter and the first half in the school year ending in 2009 and each odd ending year thereafter;
(c)so that the children spend at least five days with each of their respective parents in each of the short school holiday periods occurring each year so that overall the children spend at least ten days together during each such holiday period in both Queensland and South Australia; and
(d)At any other times, in any other places and on such other conditions as the parties may agree from time to time.
The father be responsible for paying seventy five percent (75%) of the cost of the necessary airfares required to facilitate the children spending time with each of their parents and with each other during each school holiday period pursuant to order 4 hereof and with the mother…

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 (No.2)

Details

AGLC: Garth and Hope (No.2) [2008] FMCAfam 1304
Case: [2008] FMCAfam 1304
Decision Date: 9 December 2008

CaseChat Overview and Summary

The case of Garth and Hope (No.2) involved the parents, [Q] and [B], who were in dispute over the care and custody of their two children, [Q] and [B]. The case was heard in the Family Court of Australia, where the primary concern was determining the most appropriate living arrangements for the children, considering their best interests. The court had to decide on several critical issues, including the children's preferences, their age and maturity, the level of parenting provided by both parents, and the potential for ongoing litigation.

The legal issues before the court were whether the current living arrangements should be maintained, or if a change was warranted based on the children's wishes and the parents' willingness to respect those wishes. The court considered the evidence presented by the parties and the expert opinions, particularly the recommendations made by Dr Asquith. The court also took into account the history of litigation between the parents and the potential for further disputes if the court's orders did not align with the children's preferences or the parents' stated intentions.

The court ultimately decided that despite the parents' willingness to respect the children's wishes, the potential for further litigation and the children's expressed preferences warranted a change in their living arrangements. The court ordered that [Q] would live with the father in Brisbane, while [B] would live with the mother in Adelaide. The court also outlined detailed arrangements for the children's time spent together and with each parent during school holidays, as well as provisions for communication and travel. The court emphasised that both parents had equal shared parental responsibility for the children and set out specific conditions to facilitate the children's contact with each other and their parents.

The final orders of the court included detailed provisions for the children's living arrangements, time spent together and with each parent, communication methods, and the division of costs for travel. The court also outlined the parents' rights to access information regarding the children's health, education, and welfare, and mandated that the parents inform each other immediately in the event of any serious medical conditions or hospitalisations.

Orders

Orders of the court

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

From the start of the school year in 2009 the child [Q] live with the father in Brisbane.

From the start of the school year in 2009 the child [B] live with the mother in Adelaide.

The aforesaid children spend time with one another and with each of their parents during school holidays as follows:

(a) so that the children spend one half of the end of year school holiday with their mother in South Australia being the first half in the school year ending in 2008 and each even ending year thereafter and the second half in the school year ending in 2009 and each odd ending year thereafter;

(b) so that the children spend one half of the end of year school holiday period together in Brisbane being the second half in the school year ending in 2008 and each even ending year thereafter and the first half in the school year ending in 2009 and each odd ending year thereafter;

(c) so that the children spend at least five days with each of their respective parents in each of the short school holiday periods occurring each year so that overall the children spend at least ten days together during each such holiday period in both Queensland and South Australia; and

(d) At any other times, in any other places and on such other conditions as the parties may agree from time to time.

The father be responsible for paying seventy five percent (75%) of the cost of the necessary airfares required to facilitate the children spending time with each of their parents and with each other during each school holiday period pursuant to order 4 hereof and with the mother to be responsible for paying for the remaining twenty-five percent (25%) of the necessary cost of such airfares.

The mother be able to spend time with the child [Q] in Queensland for one weekend during each school term from the conclusion of school on Thursday until the commencement of school the following Monday on giving the father fourteen (14) days written notice.

The father be able to spend time with the child [B] in South Australia for one weekend during each school term from the conclusion of school on Thursday until the commencement of school the following Monday on giving the mother fourteen (14) days written notice.

The mother have liberal telephone, email, videocam and text message communication with the child [Q] when he is in the father’s care.

The father have liberal telephone, email, videocam and text message communication with the child [B] when she is in the mother’s care.

10.

The children have liberal telephone, email, videocam and text message communication with one another.

11.

The children be permitted to travel unaccompanied pursuant to order 4 hereof.

12.

The parties each immediately inform the other in the event that either of the children is hospitalised or suffers any serious medical condition.

13.

The father and mother shall have the right to communicate with and obtain any information concerning either of the children’s physical and mental health and welfare direct from any medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsellor and/or social worker.

14.

Each party shall have the right to obtain copies of each of the children’s school, academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own cost), fees and enrolment information and such information pertaining to each of the children’s school and school related sports and extramural activities.

15.

The application and response herein be otherwise dismissed.

Background

Background to the litigation

Otherwise, I am satisfied that the children will receive an appropriate level of parenting, in both their parent’s homes, whatever is the outcome of these proceedings. [Q] and [B] are much loved children. They are well parented. g) The children’s maturity, sex, lifestyle and background [Q] is twelve years of age and on the cusp of adolescence. In the past, he has spent significant periods of time in his father’s care and seems to have been more unsettled by his parents’ separation than [B] was. In all these circumstances, it does not seem improbable that [Q] would crave to be in his father’s care and to have him as an immediate role model. It is significant that [Q] describes himself as “a mini me”, so far as his father is concerned. [B] is younger, at ten years of age. She has said to Dr Asquith she wants to be with her mummy. Given [B]’s age and degree of relationship with her mother, I can well understand why she would express this preference. h) Aboriginality This is not a relevant consideration in this case. j)Family violencek)Any family violence order These are not relevant considerations in this case.l)Whether it will be preferable to make the order that would be the least likely to lead to the institution of further proceedings As I indicated, in the first judgment, it is my perception that both parties have had ready recourse to litigation, in the past, in respect of issues to do with the parenting of [Q] and [B]. This remains my perception, particularly so far as Mr Garth is concerned. In September of 2007, I embarked upon the trial recommended by Dr Savage with reluctance and some trepidation. However, it was my view that, once the genie was out of the bottle, so far as the children’s views were concerned, it was inevitable that litigation, in some form or other, would be engaged. So it is has proved to be. It seems likely that Ms Hope is now exhausted by the many years of litigation between her and Mr Garth. As such, she is willing to accept what she believes are the valid views of the children, particularly as both [Q] and [B] perceive they have been given their parent’s and the court’s imprimatur to determine the outcome of this case. At the outset of these proceedings, it was my perception that Mr Garth was adamant in the expression of his view that he would respect any wishes expressed by the children. Without wishing to appear unduly cynical, I suspect that this may have been his view, whilst the children’s wishes apparently accorded with his own. In all these circumstances, I consider it to be highly probable that there will be further proceedings concerning the children if the court adopts either the primary or secondary recommendation, as advocated by Dr Asquith, as neither accords with Mr Garth’s preferred outcome. However, in all the circumstances of this case, I do not think that this is a sufficiently valid reason for the court to reject either of these recommendations and maintain the current living arrangements of both children in Brisbane.

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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