J & R - [2007] FMCAfam 181

FEDERAL MAGISTRATES COURT OF AUSTRALIA

J & R

[2007] FMCAfam 181

FAMILY LAW – Relocation – impact of travel on meaningful relationship.

Family Law Act 1975, ss.60CC, 65DAA

A v A: Relocation Approach (2000) FLC 93-035
AMS v AIF [1999] HCA 26, (1999) 199 CLR 160
Hall (1979) FLC 90-713
Matthews v Kennedy [2007] FMCAfam 26
R and R: Children’s Wishes (2000) FLC93-000
U and U (2002) FLC 93-112

Applicant:

Respondent:

File Number:

SYM5566 of 2006

Judgment of:

Altobelli FM

Hearing date:

6 March 2007

Date of Last Submission:

6 March 2007

Delivered at:

Sydney

Delivered on:

18 April 2007

REPRESENTATION

Counsel for the Applicant:

Mr Jamieson

Solicitors for the Applicant:

Zerrin Jamieson

Counsel for the Respondent:

Mr Macpherson

Solicitors for the Respondent:

R & M Legal

Solicitor Advocate for the Independent Children’s Lawyer:

Mr Meehan

ORDERS

The Child live with the Mother.
The parents are to have equal shared parental responsibility for the long term care, welfare and development of the Child.
Each party shall be responsible for making decisions concerning the day to day care, welfare and development of the Child at those times when the Child is spending time with that party.
The Child spend time with the Father as follows:
(a)Subject to Order 5(a) From after school Friday to before school Monday each weekend.
(b)If a period when the Child is to spend time with a parent in accordance with this Order occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Tuesday.
(c)In even numbered years for the first half of all gazetted New South Wales school holidays, and in odd numbered years for the second half of all gazetted New South Wales school holidays.
(d)On the Child’s birthday as agreed between the parties but in the absence of such an agreement, from after school until 6.30pm if the birthday falls on a school day.
(e)In odd numbered years from 3.00pm on Christmas Day until 5.00pm on Boxing Day and in even numbered years from 5.00pm Christmas Eve until 3.00pm Christmas Day.
(f)On father’s Day each year from 9.00am until 4.00pm.
(g)Reasonable telephone communication as agreed between the parties but not more than twice per week unless initiated by the Child.
(h)Such further time as the parties agree.
Notwithstanding Order 4 the Child spend time with the Mother as follows:
(a)One weekend of every month as agreed between the parties but failing agreement, on the last weekend of each month, and otherwise on the same terms as Order 4(b) above.
(b)Mother’s Day each year from 9.00am until 4.00pm.
(c)In odd numbered years for the first half of all gazetted New South Wales school holidays, and in even numbered years for the second half of all gazetted New South Wales school…

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 J & R

Details

AGLC: J & R [2007] FMCAfam 181
Case: [2007] FMCAfam 181
Decision Date: 18 April 2007

CaseChat Overview and Summary

The matter before the court was a dispute between the parents of a child concerning the arrangements for the child’s care, welfare, and development. The father sought an order for the child to live with him, and the mother sought an order for the child to live with her. The court was required to determine the best interests of the child and make appropriate orders for the child's care, welfare, and development.

The court considered the evidence and submissions from both parties and found that it was in the best interests of the child to live with the mother but to have significant time with the father. The court made orders for the child to live with the mother and for the parents to have equal shared parental responsibility for the child's long-term care, welfare, and development. The court also made orders for the child to spend time with the father on specified days and for the parents to contribute equally towards the costs of the Independent Children’s Lawyer.

The court further made orders for the parents to ensure that the child attends his weekend sporting commitments, to keep each other informed of any significant developments in relation to the child's health and education, and to provide written notice of any changes to certain particulars. The court also made orders to protect the child from exposure to excessive alcohol consumption and to prevent the parents from speaking negatively about each other in the child's hearing.

The final orders of the court were that the child live with the mother, that the parents have equal shared parental responsibility for the child's long-term care, welfare, and development, and that the child spend time with the father on specified days. The court also made orders for the parents to contribute equally towards the costs of the Independent Children’s Lawyer, to ensure that the child attends his weekend sporting commitments, to keep each other informed of any significant developments in relation to the child's health and education, and to provide written notice of any changes to certain particulars. The court further made orders to protect the child from exposure to excessive alcohol consumption and to prevent the parents from speaking negatively about each other in the child's hearing.

Orders

Orders of the court

The Child live with the Mother.

The parents are to have equal shared parental responsibility for the long term care, welfare and development of the Child.

Each party shall be responsible for making decisions concerning the day to day care, welfare and development of the Child at those times when the Child is spending time with that party.

The Child spend time with the Father as follows:

(a) Subject to Order 5(a) From after school Friday to before school Monday each weekend.

(b) If a period when the Child is to spend time with a parent in accordance with this Order occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Tuesday.

(c) In even numbered years for the first half of all gazetted New South Wales school holidays, and in odd numbered years for the second half of all gazetted New South Wales school holidays.

(d) On the Child’s birthday as agreed between the parties but in the absence of such an agreement, from after school until 6.30pm if the birthday falls on a school day.

(e) In odd numbered years from 3.00pm on Christmas Day until 5.00pm on Boxing Day and in even numbered years from 5.00pm Christmas Eve until 3.00pm Christmas Day.

(f) On father’s Day each year from 9.00am until 4.00pm.

(g) Reasonable telephone communication as agreed between the parties but not more than twice per week unless initiated by the Child.

(h) Such further time as the parties agree.

Notwithstanding Order 4 the Child spend time with the Mother as follows:

(a) One weekend of every month as agreed between the parties but failing agreement, on the last weekend of each month, and otherwise on the same terms as Order 4(b) above.

(b) Mother’s Day each year from 9.00am until 4.00pm.

(c) In odd numbered years for the first half of all gazetted New South Wales school holidays, and in even numbered years for the second half of all gazetted New South Wales school holidays.

(d) Reasonable telephone communication as agreed between the parties, but not more than twice per week, unless initiated by the Child.

(e) In even numbered years from 3.00pm on Christmas Day until 5.00pm on Boxing day and in odd numbered years from 5.00pm Christmas Eve until 3.00pm Christmas Day.

Neither party is to relocate the Child more than an hour’s drive from N without the written consent of the other party or the approval of the Court.

Both parties are restrained from speaking or permitting any other party to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Child’s hearing.

That each party authorise any relevant health or educational professional to provide the other with copies of school reports and any other information or documents relating to the health and education of the Child.

Each party is to take all reasonable steps to keep the other party informed of any significant developments in relation to the health and education of the Child.

10.

Each party will provide the other with twenty-eight (28) days written notice of their intention to change any of the following particulars:

(a) Home telephone number; or

(b) Address; or

11.

Neither party is to consume alcohol to excess while the Child is in that person’s care, or allow the Child to come into contact with persons who have consumed alcohol to excess.

12.

Both parties are to contribute equally towards the costs of the Independent Children’s Lawyer.

13.

Both parties are to endure that the Child attends his weekend sporting commitments.

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.