GY and RM - [2005] FMCAfam 205

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GY &RM

[2005] FMCAfam 205

FAMILY LAW – Past recovery order – property – parties unmarried – section 114 does not apply – father residing in family home – mother seeks to evict father from home – no jurisdiction to deal with property issue – residence with father – contact with mother – best interests of the children – transfer to Family Court.

Family Law Act 1975 (Cth), ss.60B, 64B, 65D, 65E, 67ZC, 68B, 68F, 114
Federal Magistrates Act 1999 (Cth), s.39
Federal Magistrates Court Rules 2001

AMS v AIF; AIF v AMS (1999) FLC 92-852
Cowling v Cowling (1998) FLC 92-801
Flanagan and Handcock (2001) FLC 92-074
K & K [2003] FMCAfam 214
L v T (1999) FLC 92-875

Applicant:

Respondent:

File Number:

CAM856 of 2003

Judgment of:

Mowbray FM

Hearing date:

29 March 2005

Date of Last Submission:

31 March 2005

Delivered at:

Canberra

Delivered on:

31 March 2005

REPRESENTATION

Counsel for the Applicant:

Ms Twible

Solicitors for the Applicant:

KJB Law

Counsel for the Respondent:

Ms Lyndon

Solicitors for the Respondent:

Farrar Gesini & Dunn

ORDERS

The orders previously made by this Court be discharged to the extent that they are inconsistent with the following orders.
The children, JRM and MAM, both born in 1994 and KSM born in1998 live with their father.
The children have contact with their mother as follows:
(a)Every second weekend from after school Friday until before school the following Monday, commencing 1 April 2005. If that weekend is a long weekend including a Friday, contact will commence after school on Thursday. If that weekend is a long weekend including a Monday, contact will conclude before school on Tuesday.
(b)From after school Thursday until before school the next day, commencing Thursday 7 April 2005.
(c)For one half of all school holiday periods being the second half in odd numbered years, the first half in even numbered years, and alternating thereafter.
(d)From 9am to 5pm on Mother’s Day if that day is not a contact weekend. If Father’s Day falls on a contact weekend the mother will return the children to their father at 9am on that day.
(e)At other times as agreed between the parties.
(f)By telephone at such times as agreed between the parties.
Notwithstanding these orders the children spend two hours with the parent with whom they are not residing on the children’s birthdays and the parents’ birthdays, at such time as to be agreed, and if there is no agreement from 5pm to 7pm.
Each parent will advise the other of a telephone number and address where the children will be whilst on holiday with the other parent.
The father be restrained from consuming alcohol whilst the children are in his care and for at least 12 hours prior to the children coming into his care.
Each party be and hereby is restrained from removing and/or causing or allowing the children to be removed from the Commonwealth of Australia.
The Australian Federal Police…

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 GY and RM

Details

AGLC: GY and RM [2005] FMCAfam 205
Case: [2005] FMCAfam 205
Decision Date: 31 March 2005

CaseChat Overview and Summary

The case of GY and RM involves a dispute between the parents of three children regarding their residence and contact arrangements. The matter was initially heard in the Federal Circuit Court of Australia, but was later transferred to the Family Court of Australia. The parents are seeking a determination on the best interests of the children, specifically their residence and contact arrangements. The case also deals with the parents' obligations to notify each other of the children's whereabouts during holidays and the restriction of alcohol consumption by one parent while caring for the children. Additionally, the matter addresses the removal of the children from Australia and the placement of their names on the Airport Watch List to prevent unauthorised travel.

The court was required to consider various legal principles and factors in making its determination, including the best interests of the children, the principle of equal shared parental responsibility, and the potential for harm to the children. The court had to weigh the evidence presented by both parents and consider the children's wishes, their relationship with each parent, and the impact of any changes to their living arrangements on their welfare. The court also needed to consider the potential for harm to the children if one parent consumed alcohol while caring for them and the risk of the children being removed from Australia without the other parent's knowledge.

In making its decision, the court found that the children's best interests would be served by residing with their father, with specific contact arrangements in place for their mother. The court was satisfied that the father would not consume alcohol while caring for the children and that the children's names should be placed on the Airport Watch List to prevent unauthorised travel. The court also considered it appropriate to restrain both parents from removing the children from Australia without the other parent's knowledge. The court made orders consistent with these findings, discharging previous orders to the extent they were inconsistent with the new orders. The children will reside with their father, with specific contact arrangements in place for their mother, and their names will be placed on the Airport Watch List. The father is restrained from consuming alcohol while caring for the children, and both parents are restrained from removing the children from Australia without the other parent's knowledge. Costs were reserved, and the proceedings were transferred to the Family Court of Australia.

Orders

Orders of the court

The orders previously made by this Court be discharged to the extent that they are inconsistent with the following orders.

The children, JRM and MAM, both born in 1994 and KSM born in1998 live with their father.

The children have contact with their mother as follows:

(a) Every second weekend from after school Friday until before school the following Monday, commencing 1 April 2005. If that weekend is a long weekend including a Friday, contact will commence after school on Thursday. If that weekend is a long weekend including a Monday, contact will conclude before school on Tuesday.

(b) From after school Thursday until before school the next day, commencing Thursday 7 April 2005.

(c) For one half of all school holiday periods being the second half in odd numbered years, the first half in even numbered years, and alternating thereafter.

(d) From 9am to 5pm on Mother’s Day if that day is not a contact weekend. If Father’s Day falls on a contact weekend the mother will return the children to their father at 9am on that day.

(e) At other times as agreed between the parties.

(f) By telephone at such times as agreed between the parties.

Notwithstanding these orders the children spend two hours with the parent with whom they are not residing on the children’s birthdays and the parents’ birthdays, at such time as to be agreed, and if there is no agreement from 5pm to 7pm.

Each parent will advise the other of a telephone number and address where the children will be whilst on holiday with the other parent.

The father be restrained from consuming alcohol whilst the children are in his care and for at least 12 hours prior to the children coming into his care.

Each party be and hereby is restrained from removing and/or causing or allowing the children to be removed from the Commonwealth of Australia.

The Australian Federal Police place the names of the children on the Airport Watch List enforced at all international points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list.

Costs be reserved.

10.

These proceedings be transferred to the Family Court of Australia pursuant to section 39 of the

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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