GILLMAN & TAGGART - [2012] FMCAfam 1226

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GILLMAN & TAGGART

[2012] FMCAfam 1226

FAMILY LAW – Children – Father seeking to spend time and communicate with child – Mother opposes application – telephone time only ordered – Father permitted to forward presents to the child – in the child’s best interests for no time to be ordered by the Court between the Father and the child.

Family Law Act 1975; s.60CC

Applicant:

MR GILLMAN

Respondent:

MS TAGGART

File Number:

BRC 1463 of 2007

Judgment of:

Baumann FM

Hearing date:

18 October 2012

Date of Last Submission:

18 October 2012

Delivered at:

Brisbane

Delivered on:

29 October 2012

REPRESENTATION

The Applicant:

In person

Solicitor for the Respondent:

Ms Moloney

Solicitors for the Respondent:

Jones Mitchell Lawyers

Solicitor for the Independent Children’s Lawyer:

Ms Fox

Solicitors for the Independent Children’s Lawyer:

Barbara Fox Solicitor

ORDERS

The child [X] born [in] 2001 live with the Mother.
The Mother have sole parental responsibility for the child.
The child spend time and communicate with the Father at all times as agreed between the Mother and the Father (or as requested by the child) but failing agreement:-
(a)by telephone on the first Wednesday and third Wednesday of each month between 6.00pm and 7.00pm with the Father to facilitate the call to the child’s prepaid mobile phone, provided by the Father under order 5.
(b)By correspondence once per month with the Mother to:-
(i)arrange for a suitable postal address within forty-eight (48) hours of the date of order; and
(ii)ensure that all correspondence is passed on to the child.
The Father be permitted to forward presents and cards to the child for the child’s birthday and Christmas to the postal address provided for in order 3 and the Mother is to ensure that the presents and cards are passed on to the child.
For the purpose of the telephone communication as set out in order 3(a), the Father is to provide a prepaid mobile telephone to the child and the Mother is to ensure that the telephone is switched on and charged at all relevant times.
The Mother notify the Father immediately by email to the Father’s email address: [omitted], should the child require any urgent medical treatment of a life threatening nature.
The Mother forward by way of email a copy of the child’s school progress reports and details of any extra curricular awards or certificates with details of identifying the school removed.
The Father not attend upon the child’s school without the written consent of the Mother or the invitation of the child.
The Mother not discuss these proceedings to or in the presence of the child and use her best endeavours to ensure that no third party discuss these proceedings to or in the presence of the child.
The Mother not denigrate the Father to or in the presence of the child and use her best endeavours to ensure that no third party denigrate the Father to or in the presence of the child.

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 GILLMAN & TAGGART

Details

AGLC: GILLMAN & TAGGART [2012] FMCAfam 1226
Case: [2012] FMCAfam 1226
Decision Date: 29 October 2012

CaseChat Overview and Summary

The case of Gillman and Taggart involved a dispute between parents concerning the custody and care of their child, born in 2001. The matter was heard in the Federal Magistrates Court, which was tasked with determining the best arrangements for the child's welfare. The primary issues before the court were the allocation of parental responsibility, the schedule for the child to spend time and communicate with each parent, and the conditions under which the child could travel abroad with the mother.

The court examined the evidence and submissions from both parents to determine the most appropriate arrangements. It found that the child should live primarily with the mother, who was granted sole parental responsibility. However, the father was permitted supervised contact with the child, including scheduled telephone calls and monthly correspondence. The court also mandated that the father provide a prepaid mobile phone for the child, and that the mother ensure the phone is accessible for these calls. Additionally, the father was allowed to send birthday and Christmas presents to the child, and the mother was required to forward the child's school progress reports to the father.

The court also addressed the issue of the child's overseas travel, ruling that the mother could take the child out of Australia for holidays without the father's consent. Both parents were directed to cooperate in obtaining necessary travel documents for the child. Furthermore, the court imposed restrictions on the parents to prevent them from discussing the proceedings or speaking negatively about each other in the presence of the child. The father was also required to seek the court's permission before applying for any changes to the orders. Lastly, the court provided for enforcement mechanisms in case either party failed to comply with the orders.

The court's orders aimed to balance the needs of the child with the rights and responsibilities of both parents, ensuring a stable and supportive environment for the child's upbringing.

Orders

Orders of the court

The child [X] born [in] 2001 live with the Mother.

The Mother have sole parental responsibility for the child.

The child spend time and communicate with the Father at all times as agreed between the Mother and the Father (or as requested by the child) but failing agreement:-

(a) by telephone on the first Wednesday and third Wednesday of each month between 6.00pm and 7.00pm with the Father to facilitate the call to the child’s prepaid mobile phone, provided by the Father under order 5.

(b) By correspondence once per month with the Mother to:-

(i) arrange for a suitable postal address within forty-eight (48) hours of the date of order; and

(ii) ensure that all correspondence is passed on to the child.

The Father be permitted to forward presents and cards to the child for the child’s birthday and Christmas to the postal address provided for in order 3 and the Mother is to ensure that the presents and cards are passed on to the child.

For the purpose of the telephone communication as set out in order 3(a), the Father is to provide a prepaid mobile telephone to the child and the Mother is to ensure that the telephone is switched on and charged at all relevant times.

The Mother notify the Father immediately by email to the Father’s email address: [omitted], should the child require any urgent medical treatment of a life threatening nature.

The Mother forward by way of email a copy of the child’s school progress reports and details of any extra curricular awards or certificates with details of identifying the school removed.

The Father not attend upon the child’s school without the written consent of the Mother or the invitation of the child.

The Mother not discuss these proceedings to or in the presence of the child and use her best endeavours to ensure that no third party discuss these proceedings to or in the presence of the child.

10.

The Mother not denigrate the Father to or in the presence of the child and use her best endeavours to ensure that no third party denigrate the Father to or in the presence of the child.

11.

Pursuant to s.64B(2)(g) and (h) of the Family Law Act 1975 the Father not make any application for variation of any aspect of these orders without first seeking permission of the Court to do so, and that such application be heard in chambers as follows:-

(a) in the first instance by Federal Magistrate Baumann;

(b) be facilitated by the Father forwarding a written application to the Associate to Federal Magistrate Baumann, specifying with particularity, the orders sought, together with an affidavit setting out the basis for such orders and a written argument in support of the Court granting permission to allow such application to proceed;

(c) evidence of the attempts the Father has made to pay costs ordered and assessed at $6,139.50 together with a short statement of his current financial circumstances;

(d) unless otherwise ordered by the Court, such application is not to be served on any other party; and

(e) the Court shall thereafter deliver a short-form written reasons for its decision with respect to permission to bring such application.

12.

The Mother shall be at liberty to take the child out of the Commonwealth of Australia for holidays from time to time notwithstanding the fact that the consent of the Father has not be obtained.

13.

In order to give effect to the provisions of order 11 of these orders, the Mother and the Father shall each do all acts and things and sign all deeds, documents, instruments and writings as may be necessary so as to facilitate the Mother travelling overseas and returning to the Commonwealth of Australia with the child, including, but not limited to, signing an Australian passport application and/or an Australian passport renewal/extension application and any other necessary visa/other travel documentation for the child.

14.

That:-

(a) Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these orders within seven (7) days of being requested to do so.

(b) In the event that a party refuses or neglects to sign or execute and return a document within seven (7) days of presentation to them or a lawyer representing them then pursuant to section 106A of the Family Law Act 1975 the Registrar of the Brisbane Registry of the Federal Magistrates Court of Australia or any Deputy Registrar from time to time is appointed and empowered and directed hereby to sign or execute the same in the name of that party upon presentation of such documents and an affidavit of a lawyer on behalf of the requesting party as to the said neglect or refusal.

(c) The costs of and incidental to such request and production of documents to the Registrar shall be borne by the defaulting party without further order of that Honourable Court and may be taxed or fixed by the Registrar or Deputy Registrar and thereafter shall be recoverable form the defaulting party by the other party as a debt.

(d) An affidavit by the lawyer acting for the non-defaulting party or an affidavit of the non-defaulting party shall be sufficient proof of the other party’s default.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.