Howells and Madden - [2005] FMCAfam 386

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOWELLS & MADDEN

[2005] FMCAfam 386

FAMILY LAW – Children – residence and relocation – best interests – father’s attempt to take child to (country omitted) without mother’s knowledge or consent – child entitled to a (country omitted) passport – credit – mother permitted to relocate to NSW – no face to face contact for foreseeable future – child’s details to remain on airport watch list – father restrained from making further applications for a passport for the child.

Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2)

AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A; Relocation Approach (2000) FLC 92-035
B & B (1988) FLC 91-978
M & M (1988) FLC 91-979
Neil v Nott & Anor 121 ALR 148
Re Andrew (1996) FLC 92-692
Rice & Asplund (1979) FLC 90-725

Applicant:

MR HOWELLS

Respondent:

MS MADDEN

File Number:

HBM 141 of 2002

Judgment of:

Roberts FM

Hearing dates:

15 & 16 September 2004, 13 & 14 October 2004, 4 March 2005, 18 April 2005 and 5 July 2005

Date of Last Submission:

5 July 2005

Delivered at:

Hobart

Delivered on:

5 July 2005

REPRESENTATION

The Applicant was not represented by a lawyer

Counsel for the Respondent:

Mr T. McGuire

Solicitors for the Respondent:

Temple‑Smith Partners

ORDERS

That X born (omitted) 2000 (“the child”) reside with MS MADDEN (“the Mother”).
That the Mother have sole responsibility for the child's day‑to‑day and long‑term care, welfare and development.
That the Mother be permitted to reside with the child in New South Wales.
That Mr Howells (“the Father”) have contact with the child as follows:
(a)by letter;
(b)by telephone at reasonable times, provided that such does not exceed once per week and on the basis that the Father initiates the relevant telephone call to the mother's mobile telephone; and
(c)on such other terms and conditions as may be agreed by the Mother in writing beforehand;
That the child's details remain on the Airport Watch List.
That until further order the child's (country omitted) passport No. (omitted) remain in the custody of the Registry Manager of the Family Court of Australia at Hobart.
That until further order the Father is restrained from making any further application for a passport for the child;
That copies of these orders be provided for information to the Department of Foreign Affairs and Trade and the (country omitted) High Commission in Canberra.
That the mother's application for costs be adjourned for hearing as a special fixture at 9.30 a.m. on Thursday 14^th July 2005 in Devonport.
That save as to costs, all extant applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Howells & Madden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT HOBART

HBM 141 of 2002

MR HOWELLS

Applicant

And

MS MADDEN

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter father is Mr Howells and the mother is Ms Madden.…

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 Howells and Madden

Details

AGLC: Howells and Madden [2005] FMCAfam 386
Case: [2005] FMCAfam 386
Decision Date: 5 July 2005

CaseChat Overview and Summary

Howells and Madden involved a dispute between the parents of a child born in 2000 over the child's residence and care arrangements. The matter was heard by the Family Court of Australia in Hobart. The primary concern was to determine the most appropriate living arrangements for the child, considering the parents' respective living situations and the child's best interests.

The court needed to decide several key issues: primarily, which parent should have sole responsibility for the child's day-to-day and long-term care, welfare, and development. Additionally, the court had to determine whether the child could reside with the mother in New South Wales, and if so, what contact arrangements should be made with the father. Another significant aspect was whether the child's passport should remain with the court registry and whether the father should be restrained from applying for a passport on the child's behalf.

The court concluded that the child should reside with the mother, who was to have sole responsibility for the child's care and welfare. The mother was also permitted to reside with the child in New South Wales. Regarding contact, the father was allowed communication with the child by letter and telephone, subject to certain conditions, including initiating the calls and not exceeding one call per week. The child's passport was to remain with the court registry, and the father was restrained from applying for a passport for the child until further order. The court also directed that relevant authorities be informed of these orders and that the mother's application for costs be heard at a later date. All other applications were dismissed, except for the costs application.

Orders

Orders of the court

That X born (omitted) 2000 (“the child”) reside with MS MADDEN (“the Mother”).

That the Mother have sole responsibility for the child's day‑to‑day and long‑term care, welfare and development.

That the Mother be permitted to reside with the child in New South Wales.

That Mr Howells (“the Father”) have contact with the child as follows:

(a) by letter;

(b) by telephone at reasonable times, provided that such does not exceed once per week and on the basis that the Father initiates the relevant telephone call to the mother's mobile telephone; and

That the child's details remain on the Airport Watch List.

That until further order the child's (country omitted) passport No. (omitted) remain in the custody of the Registry Manager of the Family Court of Australia at Hobart.

That until further order the Father is restrained from making any further application for a passport for the child;

That copies of these orders be provided for information to the Department of Foreign Affairs and Trade and the (country omitted) High Commission in Canberra.

That the mother's application for costs be adjourned for hearing as a special fixture at 9.30 a.m. on Thursday 14th July 2005 in Devonport.

10.

That save as to costs, all extant applications are otherwise 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.