King and Smith and Anor - [2010] FMCAfam 690

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KING & SMITH & ANOR

[2010] FMCAfam 690

FAMILY LAW – Children – with whom a child lives – competing applications by a non-relative and biological parents – cultural issues.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 64C, 65C, 65Y, 65DAA

Re Evelyn (1998) FLC 92-807
Dennett & Norman [2007] FamCA 57
D & F (unreported) [2001] FamCA 382
Souter & Meagher & Anor (2007)FAMCA18
Donnell & Dovey [2010] FAMCAFC 15
Hall & Hall [1979] FLC90-713
D & T [2007] FAMCA 1383
G & C [2006] FAMCA 994
Moses & Barton (2008) FAMCA590

Carlson and Ors & Bowden [2008] FamCA 1064

Applicant:

MS KING

First Respondent:

MR SMITH

Second Respondent:

MS SMITH

File Number:

MLC 5388 of 2009

Judgment of:

Baker FM

Hearing dates:

14 & 15 April 2010 (In Melbourne)

Date of Last Submission:

15 April 2010

Delivered at:

Hobart

Delivered on:

7 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr Devries

Solicitors for the Applicant:

Garden & Green Lawyers

Counsel for the Respondents:

Ms Wiener

Solicitors for the Respondents:

Legal Aid Commission of Victoria

ORDERS

Ms Smith and Ms Smith (“the parents”) and Ms King are to equally share parental responsibility for [X] born [in] 2003 (“the child”).
The child live with Ms King.
The child spend time with the parents, or either of them as follows:
(a)In the event that the child lives in Victoria:
(i)For one half of each Victorian term school holiday, the times to be agreed, and if not agreed for the first half of the school holiday period.
(ii)For four weeks during the Christmas school holiday, the times to be agreed, and if not agreed for the first four weeks of the holiday period in 2010 and the last four week period of the holiday in 2011 and alternating yearly thereafter.
(b)In the event that the child lives within 20 kilometres of the residence of the parents:
(i)Each alternate weekend from after school Friday to 6.00pm Sunday,
(ii)Each Wednesday from after school until Thursday morning at school.
(iii)For one half of each school term holiday, the times to be agreed and if not agreed for the first half of the school holiday period
(iv)For one half of the Christmas school holiday, the times to be agreed and if not agreed for the first half such period in 2010 and the second half in 2010 and alternating yearly thereafter.
(v)For two hours on the child’s and the parents’ birthdays.
(c)In the event that the parents travel to [S] and provide 14 days notice to Ms King, such times as agreed and if not agreed for a period of 7 days.
(d)For such further occasions or periods as may be agreed.
(a) Ms King pay the costs of the child’s travel for the time with the parents.
(b)Ms King provide to the parents 14 days notice of the child’s travel arrangements prior to each period of time.
The child communicate with the parents by telephone;
(a)Initiated…

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 King and Smith and Anor

Details

AGLC: King and Smith and Anor [2010] FMCAfam 690
Case: [2010] FMCAfam 690
Decision Date: 7 July 2010

CaseChat Overview and Summary

The case of King and Smith and Anor involves a dispute between Ms King, who has been in a de facto relationship with the child's parents, Ms Smith and Mr Smith, and the parents themselves. The primary issue before the court was the allocation of parental responsibility for the child, [X], born in 2003. The court was also required to determine the living arrangements for the child, including the time to be spent with each party, and the communication and visitation rights of the parents.

The court considered the welfare and best interests of the child as the paramount consideration in making its decision. The court found that it was in the best interests of the child for parental responsibility to be shared equally among the three parties. It was ordered that the child would live with Ms King, while the parents would have specified periods of time to spend with the child. The court also addressed the communication and visitation rights of the parents, determining that the child should have regular contact with them through phone calls and in-person visits, as well as the right to receive updates on the child's health and school progress. Additionally, the court imposed restrictions on the parents' conduct, including a prohibition on physical chastisement, exposure of breasts, and the requirement to suckle, as well as a requirement for the parents to provide Ms King with information regarding their migration status.

The final orders of the court include the equal sharing of parental responsibility for the child among Ms King and the parents, the child living with Ms King, and specific arrangements for the parents to spend time with the child. The court also ordered that Ms King would cover the costs of the child's travel for the time spent with the parents and that the parents should be kept informed of the child's health and school activities. Furthermore, the parents were restrained from removing the child from Australia and were subject to airport watch lists to prevent such an occurrence.

Orders

Orders of the court

Ms Smith and Ms Smith (“the parents”) and Ms King are to equally share parental responsibility for [X] born [in] 2003 (“the child”).

The child live with Ms King.

The child spend time with the parents, or either of them as follows:

(a) In the event that the child lives in Victoria:

(i) For one half of each Victorian term school holiday, the times to be agreed, and if not agreed for the first half of the school holiday period.

(ii) For four weeks during the Christmas school holiday, the times to be agreed, and if not agreed for the first four weeks of the holiday period in 2010 and the last four week period of the holiday in 2011 and alternating yearly thereafter.

(b) In the event that the child lives within 20 kilometres of the residence of the parents:

(i) Each alternate weekend from after school Friday to 6.00pm Sunday,

(ii) Each Wednesday from after school until Thursday morning at school.

(iii) For one half of each school term holiday, the times to be agreed and if not agreed for the first half of the school holiday period

(iv) For one half of the Christmas school holiday, the times to be agreed and if not agreed for the first half such period in 2010 and the second half in 2010 and alternating yearly thereafter.

(v) For two hours on the child’s and the parents’ birthdays.

(c) In the event that the parents travel to [S] and provide 14 days notice to Ms King, such times as agreed and if not agreed for a period of 7 days.

(d) For such further occasions or periods as may be agreed.

(a) Ms King pay the costs of the child’s travel for the time with the parents.

(b) Ms King provide to the parents 14 days notice of the child’s travel arrangements prior to each period of time.

The child communicate with the parents by telephone;

(a) Initiated by either or both of the parents at all reasonable times except during normal school hours and not being later than 7.30pm,

(b) Initiated by Ms King whenever the child requests to speak with either or both of the parents.

The parents be permitted to communicate with the child by way of letter, card or email.

Each of the parents be and is hereby restrained from applying any form of physical chastisement to the child or permitting any other person to do so.

The mother be and is hereby restrained from;

(a) Exposing her breasts to the child,

(b) Requiring the child to suckle her breasts,

Ms King authorise the child’s school to provide to the parents, at the cost of the parents, copies of all written communications, photographs and electronic communications normally provided to parents.

Ms King authorise the child’s school to permit the parents to attend parent-teacher interviews and all school and extra-curricular activities normally attended by parents.

10.

Ms King provide the parents with prompt notification of detail of all illnesses, accidents or occurrences of the child requiring him to attend upon a health professional and such health professional be authorised to discuss all aspects of such attendance with the parents, or either of them.

11.

Each party shall keep the other advised of their residential address and telephone contact details.

12.

The parents are to keep Ms King advised of their migration status and in the event that they are to be deported they forthwith advise Ms King of such event.

13.

The parents Ms Smith and Mr Smith be restrained from removing or causing or allowing the child, [X] born [in] 2003 (male), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on Airport Watch Lists at all points of arrival or departure in the Commonwealth of Australia and maintain that child’s name on the Watch List until the Court orders his removal.

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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