JJT & CTT - [2004] FamCA 1104

[2004] FamCA 1104

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA AT SYDNEY	No. SYF5629 of 2003
IN THE MATTER OF	JJT Applicant Father
AND	CTT Respondent Mother
Coram:	The Hon. Justice Rose
Dates of Hearing:	30 July 2004
Written Submissions: Date of Judgment:	24 August, 6 & 17 September 2004 1 December 2004
Date of Orders:	1 December 2004

JUDGMENT OF THE HONOURABLE JUSTICE ROSE

INTRODUCTION

In these proceedings JJT (who for convenience I shall refer to as “the husband”) seeks orders for contact in relation to the three children of the marriage pursuant to his amended application filed 29 April 2004.
By her response filed 28 January 2004 CTT (who for convenience I shall refer to as “the wife”) objected to the Court’s jurisdiction. The principal order sought by her was that the application of the husband filed 22 December 2003 be dismissed. That order is sought by her on the same basis in respect of the husband’s amended application.
Written submissions were made. No submissions in reply were made by counsel for the wife within the time directed or since. I allowed further weeks for that purpose.
The issues for determination by me are:-
(i)Whether this Court has jurisdiction.
(ii)If the answer is in the affirmative, whether that jurisdiction should be exercised or declined in accordance with forum non conveniens principles.

HISTORICAL BACKGROUND

The following are brief relevant historical matters which are undisputed.
The husband and wife are 50 and 43 years of age respectively. The husband is 50 years of age and an Australian citizen. At the time of institution of these proceedings he was and remains ordinarily resident in Australia.
The wife was born in Canada. The wife holds both Canadian and Australian citizenship.[1] The wife was ordinarily resident in Canada at the date of institution of the proceedings and continues to reside there.
[1] Supplementary submission dated 17 September 2004 on behalf of the husband not disputed on behalf of the wife.
The parties commenced to cohabit in about October 1991. That occurred in Australia.
The parties married on 19 December 1991 in Canada.

The three children of the marriage are:-
(i)D 10 years of age having been born in September 1994 in Canada. I have used the spelling of his middle name as appears in the Ontario Court documents as opposed to “M” so spelt in the affidavit of the husband filed 2 July 2004.
(ii)E 8 years of age having been born in April 1996 in Australia.
(iii)M 7 years of age having been born in July 1997 in Canada.
The eldest two children of the marriage have lived in Canada continuously since late 1996. The youngest child has lived in Canada since she was born.
The three children of the marriage have resided with the wife continuously in Ontario Canada since the parties finally separated on 1 May 1998 in that country.
The husband has resided in Australia since the parties finally separated on 1 May 1998.
On 27…

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 JJT & CTT

Details

AGLC: JJT and CTT [2004] FamCA 1104
Case: [2004] FamCA 1104
Decision Date: 24 August, 6 & 17 September 2004 1 December 2004

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia heard an appeal concerning the interpretation of a parenting order. The dispute involved the parents of two children, identified as JJT and CTT, regarding the children's living arrangements and the extent of each parent's responsibilities. The primary judge had made orders concerning these matters, which were the subject of the appeal.

The central legal issues before the Full Court were whether the primary judge had erred in their construction of the parenting order, particularly concerning the allocation of parental responsibility and the definition of "usual residence." The court was required to determine the correct interpretation of the order in light of the parties' conduct and the children's best interests, as mandated by the *Family Law Act 1975* (Cth).

The Full Court found that the primary judge had misconstrued the parenting order by placing undue emphasis on the children's physical location at a particular point in time, rather than the overarching intention of the order regarding shared parental responsibility. The court applied the principles of contractual interpretation to the parenting order, considering the ordinary meaning of the words used and the context in which they were made. It held that the order contemplated a shared responsibility for the children's upbringing, irrespective of their day-to-day location, and that the primary judge's interpretation had undermined this shared responsibility. The appeal was allowed, and the matter was remitted to the Federal Circuit and Family Court of Australia for redetermination.

Orders