H & H - [2007] FMCAfam 90

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & H

[2007] FMCAfam 90

FAMILY LAW – Parental responsibility – father lives overseas – limited involvement to date – use of electronic communication.

CHILD SUPPORT – Departure from Administrative Assessment – father lives overseas – capacity to earn income.

Child Support (Assessment) Act1989, ss.4, 117
Family Law Act 1975, ss.4, 60CC, 61DA, 64B

Chapman and Palmer (1978) FLC 90-510
DJM and JLM [1998] FamCA 97
Goode and Goode [2006] FamCA 1346
Matthews and Kennedy [2007] FMCAfam 26
Newan and Rowe [2006] FamCA 73
Spinks and Spinks (2001) FAMCA 197
S & S (2005) FMCAfam 78

Applicant:

Respondent:

File Number:

SYM 3141 of 2001

Judgment of:

Altobelli FM

Hearing date:

29-30 January 2007

Date of Last Submission:

30 January 2007

Delivered at:

Sydney

Delivered on:

26 April 2007

REPRESENTATION

Counsel for the Applicant:

Mr Gersbach

Solicitors for the Applicant:

Etheringtons Solicitors

Counsel for the Respondent:

Mr Gould

Solicitors for the Respondent:

Makinson & D’Apice

ORDERS

The Mother and Father to have equal shared parental responsibility for the Children in relation to the long-term care, welfare and development of the children including but not limited to issues about:
(a)The education of the Children – current and future; and
(b)The surname by which they are to be known; and
(c)The religion of the children; and
(d)Their overseas travel including obtaining of passports; and
(e)Any change to the Children’s living arrangements that may make it significantly more difficult for the Children to communicate with their Father.
Notwithstanding order 1 above, for as long as the Mother and Children continue to reside in Australia, and the Father continues to reside outside of Australia, the Father is not to unreasonably withhold his consent to the Mother’s request to educate the Children at a particular school, or to enable the Children to travel both domestically and internationally for education or leisure purposes.
The Mother to have sole responsibility for making decisions about the Children’s day to day care, welfare and development during the times that the Children live with her.
The Children live with the Mother.
The Mother and the Father are to do all things necessary to facilitate, and ensure, that the Children communicate with their Father either by telephone, letter, email or webcam or other form of electronic communication as often as the parents agree but not less that once per calendar month.
The Mother is to keep the Father informed as soon as is reasonably practicable of:
(a)Any medical problems or illnesses suffered by the Children other than minor ailments; and
(b)The Children’s progress at school, not less than once a term; and
(c)A telephone contact number and an email address for the Children; and
(d)Any other matter relevant to the welfare of the Children; and
(e)Any changes to the above.
The Father is to keep the Mother informed as soon as reasonably practicable of:
(a)His residential address; and
(b)His telephone number; and
(c)His email address; and
(d)And changes to the above…

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 H & H

Details

AGLC: H & H [2007] FMCAfam 90
Case: [2007] FMCAfam 90
Decision Date: 26 April 2007

CaseChat Overview and Summary

The case of H & H involved a dispute between the parents of two children over matters of parental responsibility and child support. The father, who lived overseas, had limited involvement in the children’s lives to date. The mother sought various orders regarding the children’s education, religion, overseas travel, and communication with the father. The father contested these applications and sought a departure from the administrative assessment of child support due to his overseas residence and capacity to earn income. The case was heard in the Family Court of Australia.

The legal issues in this case centred on the allocation of parental responsibility and decision-making authority between the parents, given the father's limited physical presence in the children's lives. The court was also required to determine the appropriate child support payments, taking into account the father’s overseas residence and earning capacity. The mother argued for greater control over the children's day-to-day care and education, while the father sought a more balanced approach to shared parental responsibility.

The court found that it was in the best interests of the children to have equal shared parental responsibility for their long-term care, welfare, and development, including decisions about education, religion, overseas travel, and communication with the father. The court acknowledged the father's limited involvement but emphasised the importance of maintaining a meaningful relationship between the children and their father, facilitated by regular electronic communication. The court also determined that the mother should have sole responsibility for day-to-day care during the times the children lived with her. Regarding child support, the court adjusted the assessment to reflect the father’s circumstances and capacity to pay.

The final orders included equal shared parental responsibility for the long-term care, welfare, and development of the children, with specific provisions for education, religion, overseas travel, and communication with the father. The mother was granted sole responsibility for day-to-day care, while the children were to live with her. Both parents were required to facilitate and ensure regular communication between the children and the father. The court also mandated information sharing between the parents regarding the children’s health, education progress, and contact details. All other applications filed by the parents were dismissed.

Orders

Orders of the court

The Mother and Father to have equal shared parental responsibility for the Children in relation to the long-term care, welfare and development of the children including but not limited to issues about:

(a) The education of the Children – current and future; and

(b) The surname by which they are to be known; and

(d) Their overseas travel including obtaining of passports; and

(e) Any change to the Children’s living arrangements that may make it significantly more difficult for the Children to communicate with their Father.

Notwithstanding order 1 above, for as long as the Mother and Children continue to reside in Australia, and the Father continues to reside outside of Australia, the Father is not to unreasonably withhold his consent to the Mother’s request to educate the Children at a particular school, or to enable the Children to travel both domestically and internationally for education or leisure purposes.

The Mother to have sole responsibility for making decisions about the Children’s day to day care, welfare and development during the times that the Children live with her.

The Children live with the Mother.

The Mother and the Father are to do all things necessary to facilitate, and ensure, that the Children communicate with their Father either by telephone, letter, email or webcam or other form of electronic communication as often as the parents agree but not less that once per calendar month.

The Mother is to keep the Father informed as soon as is reasonably practicable of:

(a) Any medical problems or illnesses suffered by the Children other than minor ailments; and

(b) The Children’s progress at school, not less than once a term; and

(d) Any other matter relevant to the welfare of the Children; and

(e) Any changes to the above.

The Father is to keep the Mother informed as soon as reasonably practicable of:

(a) His residential address; and

(b) His telephone number; and

(d) And changes to the above from time to time; and

(e) Any plans he has to return to Australia for any purpose that includes spending time or communicating with the Children.

All other Applications filed by the Mother and the Father are dismissed.

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.