Hudson and Hudson - [2009] FMCAfam 792

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUDSON & HUDSON

[2009] FMCAfam 792

FAMILY LAW – Parenting – parties agreed that children to live with father and as to extent of mother’s time with them – mother seeks injunction restraining father from living with children outside of specified radius of her locality – whether a parenting order – power of court to grant injunction – matters relevant to exercise of discretion.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 65DAA, 68B, 69B & 114

Sampson & Hartnett(No.10) [2007] FamCA 1365
Mills & Watson [2008] FMCAfam 2
Bennett & Bennett (2001) FLC 92-088
Re Bell; Ex parte Lees (1980) FLC 90-850

Applicant:

MR HUDSON

Respondent:

MS HUDSON

File Number:

PAC5359 of 2007

Judgment of:

Lindsay FM

Hearing dates:

25 May & 17 June 2009

Date of Last Submission:

23 June 2009 (by written submissions)

Delivered at:

Parramatta

Delivered on:

31 July 2009

REPRESENTATION

Counsel for the Applicant:

Mr Chesters

Solicitors for the Applicant:

Norwest Family Law

Counsel for the Respondent:

Mr Harper

Solicitors for the Respondent:

Meyer Pigdon Family Lawyers

ORDERS

The mother and father have equal shared parental responsibility for making decisions about the major long-term issues in relation to the care, welfare and development of the children [X] born in 1995, [Y] born in 1999 and [Z] born in 2001.
The mother have sole parental responsibility for making the day-to-day decisions about matters that are not major long-term issues concerning the said children when the said children are in her care.
The father have sole parental responsibility for making the day-to-day decisions about matters that are not major long-term issues concerning the said children when the said children are in his care.
The said children live with the father.
The said children spend time with mother as follows:
(a)during school terms:
(i)each alternate weekend from 5:30pm on Friday to 7:30am on Monday; and
(ii)each Wednesday from 5:30pm to Thursday on 7:30am; and
(b)during school holiday periods:
(i)for the first half of each of the holiday periods following Term 1, Term 2 and Term 3, such period to commence at 5:30pm on the last day of the school term and to conclude at 12:30pm on the middle Sunday of the school holiday period;
(ii)for the first half of the Christmas school holiday period in each year ending in an even year and alternate year thereafter, such period to commence at 5:30pm on the last day of the school term and to conclude at 12:30pm on the second Sunday of January that year; and
(iii)for the second half of the Christmas school holiday period en each year ending in an odd year and each alternate year thereafter, such period to commence at 12:30pm on the second Sunday of January that year and to conclude at 7:30am on the first day of Term 1.
Notwithstanding the above orders, the following applies in relation to special days:
(a)in each year ending in an odd year, the mother will spend time with all the…

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 Hudson and Hudson

Details

AGLC: Hudson and Hudson [2009] FMCAfam 792
Case: [2009] FMCAfam 792
Decision Date: 31 July 2009

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Hudson and Hudson was heard, involving a dispute between the parents, [X] and [Y], regarding the care, welfare, and development of their three children, [Z] born in 1995, [A] born in 1999, and [B] born in 2001. The parents sought orders concerning the children's living arrangements, decision-making responsibilities, and visitation schedules. The primary issues before the court were the allocation of parental responsibility for major long-term and day-to-day decisions, the children's primary residence, and the visitation schedule with the non-primary caregiver.

The court considered the best interests of the children as the paramount concern in making its decisions. It found that both parents were capable of sharing parental responsibility for major long-term decisions but that the mother should have sole responsibility for day-to-day decisions when the children were in her care, and the father when they were in his care. The court ordered that the children live with the father, with a detailed visitation schedule for the mother during school terms and holidays. Special provisions were made for the children's birthdays, the parents' birthdays, Mother's Day, and Father's Day, ensuring that each parent has significant time with the children on these occasions. The court also mandated communication between the parents and the children, the exchange of school-related information and correspondence, and the father's efforts to take the children to church each Sunday. Additionally, the father was required to inform the mother of any significant events or changes related to the children's health, education, and general well-being.

The final orders provided a structured and detailed plan for the children's care, ensuring that both parents remain actively involved in their lives. The court emphasized the importance of cooperation and communication between the parents for the children's welfare. The mother was granted reasonable communication access to the children, while the father was tasked with facilitating communication through Skype or MSN videophone and providing the mother with necessary school-related documents and information. The children's education was to be coordinated between the parents, with a focus on enrolling them in schools in the Northern Beaches area. The court also outlined specific logistics for collecting and returning the children during visitation periods, ensuring a smooth transition between the parents' care.

Orders

Orders of the court

The mother and father have equal shared parental responsibility for making decisions about the major long-term issues in relation to the care, welfare and development of the children [X] born in 1995, [Y] born in 1999 and [Z] born in 2001.

The mother have sole parental responsibility for making the day-to-day decisions about matters that are not major long-term issues concerning the said children when the said children are in her care.

The father have sole parental responsibility for making the day-to-day decisions about matters that are not major long-term issues concerning the said children when the said children are in his care.

The said children live with the father.

The said children spend time with mother as follows:

(a) during school terms:

(i) each alternate weekend from 5:30pm on Friday to 7:30am on Monday; and

(ii) each Wednesday from 5:30pm to Thursday on 7:30am; and

(b) during school holiday periods:

(i) for the first half of each of the holiday periods following Term 1, Term 2 and Term 3, such period to commence at 5:30pm on the last day of the school term and to conclude at 12:30pm on the middle Sunday of the school holiday period;

(ii) for the first half of the Christmas school holiday period in each year ending in an even year and alternate year thereafter, such period to commence at 5:30pm on the last day of the school term and to conclude at 12:30pm on the second Sunday of January that year; and

(iii) for the second half of the Christmas school holiday period en each year ending in an odd year and each alternate year thereafter, such period to commence at 12:30pm on the second Sunday of January that year and to conclude at 7:30am on the first day of Term 1.

Notwithstanding the above orders, the following applies in relation to special days:

(a) in each year ending in an odd year, the mother will spend time with all the said children from 5:30pm on each of the said children’s birthdays until 7:30am on the following day;

(b) in each year ending in an even year, the father will spend time with all the said children from 5:30pm on each of the said children’s birthdays until 7:30am on the following day;

(c) on the mother’s birthday, if the said children are not otherwise in the mother’s care, the said children will spend time with the mother on that day from 5:30pm until 7:30am on the following day;

(d) on the father’s birthday, if the said children are not otherwise in the father’s care, the said children will spend time with the father on that day from 5:30pm until 7:30am on the following day; and if in a year ending in an odd year the said children are in the father’s care for his birthday and there are two or less days between the end of the father’s care period on that day and the first day of Term 1 of the school that the children attend, then the said children will remain in the father’s care;

(e) on Mother’s Day, if the said children are not otherwise in the mother’s care, the said children will spend time with the mother on that day from 10am until 7:30am on the following day; and

(f) on Father’s Day, if the said children are not otherwise in the father’s care, subject to the day not being the mother’s birthday, the said children will spend time with the father from 10am until 7:30am on the following day.

The mother be at liberty to communicate with the said children by telephone or mobile telephone at any reasonable time while the said children are not in her care.

The father ensure that the said children are available to communicate with the mother by Skype and/or MSN videophone at times as agreed between the parties.

The father provide the mother with any and all correspondence, school reports or documents of whatsoever nature supplied by the school(s) the said children attend concerning each of the said children within seven (7) days of him having received the said correspondence, reports or documentation.

10.

The father advise the mother by email of any and all special events, functions, sports days, parents’ evenings and the like which may be scheduled by the school(s) the said children attend no later than three (3) days after the father is informed of any such events.

11.

The father endeavour to take the children to Hillsong Church, [B] each Sunday while they are in his care.

12.

The father provide the mother with information as soon as practicable upon the happening of the following:

(a) any medical emergency involving any child, including but not limited to serious illness, accident or hospitalisation;

(b) events or information related to the general health of each child, including but not limited to medical appointments, test results, progress reports and details of any treatment, and notice of appointments to be provided as soon as practicable following the making of any such appointments;

(d) matters relating to the education of each child, including but not limited to parent/teacher interviews, disciplinary matters, achievements, awards, concerts and special events, sports days, newsletters and notices.

13.

The said children will forthwith be enrolled in schools in the Northern Beaches area, being such schools as the parties may agree within fourteen (14) days or as fixed upon application to the Court following the expiry of that period.

14.

For the purposes of paragraphs 5, 6(a), 6(c) and 6(e) of these orders, the mother will collect the said children from the home of the father at the commencement of the time-spent and the father will collect the said children from the home of the mother at the conclusion thereof.

15.

For the purposes of paragraphs 6(b), 6(d) and 6(f) of these orders, the father will collect the said children from the home of the mother at the commencement of the time-spent and the mother will collect the said children from the home of the father at the conclusion thereof, where applicable.

16.

All applications do otherwise stand dismissed.

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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