L and B (No.3) - [2004] FMCAfam 659

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & B (No.3)

[2004] FMCAfam 659

FAMILY LAW – Children – contact – variation of contact – supervised contact – unsubstantiated allegation of abuse.

PRACTICE & PROCEDURE – Evidence admissibility – documentary evidence – hearsay evidence – whether a file from the NSW Department of Community Services is admissible as a business record – whether the court should exercise its discretion under s.135 of the Evidence Act 1995 (Cth) to exclude DOCS file as unfairly prejudicial.

Evidence Act 1995 (Cth), ss.69; 135; 140
Evidence Act 1995 (Cth), ss.69; 135
Family Law Act 1975 (Cth), ss.60B; 65E; 68F(2); 97(2)(c)

L & B [2003] FMCAfam 211 referred to.
L & B (No.2) [2003] FMCAfam 241 referred to.
Vitali v Stachnik [2001] NSWSC 303 (20 April 2001) distinguished
O’Donnell & Murphy & The Child Representaive Appeal SA80 of 2002
WK & SR (1997) 22 Fam LR 592; FLC 92-787
Briginshaw v Briginshaw (1938) 60 CLR 336

Applicant:

K M L

Respondent:

S W J B

File No:

PAM 307 of 2000

Delivered on:

19 November 2004

Delivered at:

Sydney

Hearing dates:

4 & 5 December 2003, 21 January 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Lapthorn

Solicitors for the Applicant:

Broun Abrahams

Counsel for the Respondent:

Mr Campton

Solicitors for the Respondent:

Matthews Folbigg Pty Ltd

ORDERS

That the Orders made on 3 July 2001 and varied by the Orders made on 29 November 2002 are discharged.
That the child R M B born 24 August 1999 live with the mother.
That the father have contact with the child R:
(a)each alternate weekend during school term time from 6.00 p.m. Friday until 6.00 p.m. on Sunday extending to 6.00 p.m. on Monday if the Monday is a public holiday;
(b)that the father’s contact set out in Order 3(a) is suspended from the last day of any school term until the first day of the next school term commencing at the end of the school term in December 2004 however for the purposes of calculating the sequence of alternate contact as set out in Order 3(a) the suspended contact is to be taken to have occurred;
(c)for five (5) days in January 2005;
(d)for half of each school holiday period from and including the Autumn school holidays in 2005 such half to be agreed between the parents and failing agreement:
(i)for the first half of each school holiday period in odd numbered years with the first day of such contact to commence at 5.00 p.m. on the last day of the school term; and;
(ii)for the second half of each school holiday period in even numbered years with the conclusion of such contact to be 5.00 p.m. on the Sunday preceding the commencement of school term;
(e)for one half of Christmas Eve, Christmas Day and Boxing Day as agreed between the parents and failing agreement:
(i)from 12 noon on Christmas Day until 12 noon on Boxing Day in odd numbered years; and
(ii)from 12…

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 L and B (No.3)

Details

AGLC: L and B (No.3) [2004] FMCAfam 659
Case: [2004] FMCAfam 659
Decision Date: 19 November 2004

CaseChat Overview and Summary

This case involved the parents of a child, R, who were in dispute over various parenting arrangements. The matter was heard by the Family Court of Australia, which was required to determine the best interests of the child in relation to their living arrangements and contact with each parent. The court was tasked with resolving issues such as the primary residence of the child, the schedule for contact with the non-resident parent, and other specific contact arrangements including special occasions and school holidays. Additionally, the court needed to address the parents' obligations regarding the child's welfare, education, and general conduct towards each other and the child.

The court considered various factors in determining the best interests of the child, including the child's need for stability and routine, the capacity of each parent to provide for the child's physical and emotional needs, and the potential impact of the parenting arrangements on the child's relationship with each parent. The court also took into account the parents' ability to cooperate and communicate effectively for the benefit of the child. Ultimately, the court concluded that the child's welfare would be best served by specific arrangements that provided for a primary residence with the mother, while allowing the father substantial and structured contact, subject to certain conditions and restrictions designed to protect the child's best interests.

The Family Court of Australia decided that the child, R, should primarily reside with the mother but have detailed and structured contact with the father, including specific times during school terms and holidays, special occasions, and telephone contact. The court imposed several conditions on the father's contact to ensure the child's safety and well-being, such as the presence of a paternal grandparent during certain periods of contact, restrictions on contact during specific times, and requirements for the father to notify the mother of any changes in his plans. The court also outlined the responsibilities of both parents regarding the child's education, medical care, and general conduct, and imposed restrictions on the use of prohibited substances by the father during contact periods. The orders reflect a balanced approach, aiming to foster a healthy relationship between the child and both parents while prioritising the child's overall welfare.

Orders

Orders of the court

That the Orders made on 3 July 2001 and varied by the Orders made on 29 November 2002 are discharged.

That the child R M B born 24 August 1999 live with the mother.

That the father have contact with the child R:

(a) each alternate weekend during school term time from 6.00 p.m. Friday until 6.00 p.m. on Sunday extending to 6.00 p.m. on Monday if the Monday is a public holiday;

(b) that the father’s contact set out in Order 3(a) is suspended from the last day of any school term until the first day of the next school term commencing at the end of the school term in December 2004 however for the purposes of calculating the sequence of alternate contact as set out in Order 3(a) the suspended contact is to be taken to have occurred;

(d) for half of each school holiday period from and including the Autumn school holidays in 2005 such half to be agreed between the parents and failing agreement:

(i) for the first half of each school holiday period in odd numbered years with the first day of such contact to commence at 5.00 p.m. on the last day of the school term; and;

(ii) for the second half of each school holiday period in even numbered years with the conclusion of such contact to be 5.00 p.m. on the Sunday preceding the commencement of school term;

(e) for one half of Christmas Eve, Christmas Day and Boxing Day as agreed between the parents and failing agreement:

(i) from 12 noon on Christmas Day until 12 noon on Boxing Day in odd numbered years; and

(ii) from 12 noon on Christmas Eve until 12 noon on Boxing Day in even numbered years.

(f) on the child’s birthday being 24 August in each year:

(i) in the event the birthday falls on a weekend, for four (4) hours as agreed between the parents and failing agreement from 9.00 a.m. to 1.00 p.m. that day;

(ii) in the event the birthday falls on a week day during school term:

a. by telephone between 5.00 p.m. and 6.00 p.m., such telephone contact to be initiated by the father telephoning the mother’s mobile telephone; and

b. from 9.00 a.m.; to 1.00 p.m. on the Saturday nearest in time to the birthday;

(g) on Father’s Day from 9.00 a.m. until 6.00 p.m;

(h) by telephone each Tuesday and Thursday between the hours of 5.00 p.m. and 6.00 p.m. such telephone contact is to be initiated by the mother telephoning the father’s home telephone at Bundeena with the mother using her best endeavours to facilitate the telephone contact;

(i) at other times if any are agreed between the parties;

(j) for a period of twelve (12) months from the date of these Orders the father must ensure that one or more of the paternal grandparents R W B and C E B or his friend M K is present during any period of school holiday contact as set out in Orders 3(c) and 3(d) to include the collection and return of the child R at the commencement and conclusion of contact;

PROVIDED THAT notwithstanding the Orders set out above the father is not to exercise contact at any of the following times:

(k) for the first half of each school holiday period in even numbered years;

(l) for the second half of each school holiday period in odd numbered years;

(m) from 12 noon on Christmas Day until 12 noon on Boxing Day in even numbered years;

(n) from 12 noon on Christmas Eve until 12 noon on Christmas Day in odd numbered years;

(o) in the even that the child R’s birthday falls on a contact weekend, on the child’s birthday for four (4) hours as agreed between the parties and failing agreement from 2.00 p.m. until 6.00 p.m. on that day: and

(p) on Mother’s Day from 9.00 a.m. until the end of the day.

That for the purpose of facilitating contact according to these Orders the mother must deliver the child R to the paternal grandparents or the father or any one of them at the home of the paternal grandparents at the commencement of contact and the paternal grandparents or the father or any one of them must return the child to the mother at that same place at the conclusion of each contact period.

That the father must provide the mother with seven (7) days advance notice of any proposed overnight stay away from his residence or the paternal grandparents’ residence during contact and this notice must include an itinerary and contact details.

That while the child R is on contact with the father he must:

(a) forthwith notify the mother of any illness or serious injury sustained by the child;

(b) ensure that the child is properly restrained in an appropriate child seat or seat belt at all times when travelling in a motor vehicle as required by the law of New South Wales;

(c) cause the child to telephone the mother on her mobile telephone in the event that the child requests to speak to the mother during any contact period; and

(d) cause the child to telephone the mother on her mobile telephone each Tuesday and Saturday between the hours of 5.00 p.m. and 6.00 p.m. while the child is on school holiday contact with the father.

THAT notwithstanding these Orders the father is not to exercise contact with the child if the mother provides the father or the paternal grandparents with a certificate from a medical practitioner to the effect that the child is affected by illness on the day the father would ordinarily be entitled to contact with the child PROVIDED THAT the mother must then arrange a further period of contact between the father and the child to make up for the time lost due to illness, such further period to be arranged within one month.

That the father be restrained from administering to himself any prohibited drug or using any prohibited substance during any period of contact or for twelve (12) hours before the commencement of any period of contact.

That if the father is unable to exercise any contact provided by these orders he must notify the mother at least 24 hours beforehand.

10.

That the mother must do all acts and things necessary to authorise the Principal of any school attended by the child to forward to the father copies of all school reports, bulletins, newsletters and information about school photographs.

11.

That the parents must do all acts and things and sign all documents necessary to enable the mother to obtain an Australian passport for the child R.

12.

That upon the mother obtaining an Australian passport for the child she must within seven (7) days lodge the passport with the exhibits office at the Federal Magistrates Court at Parramatta.

13.

The child’s passport is to be held at the exhibits office and only released to the parents upon:

(a) the attendance of the parents in person at the exhibits office; and

(b) the provision of written consent from the parents to the release of the passport to either the mother or the father; and

(c) the production of a written undertaking by the mother or the father as the case may be to return the child’s passport to the exhibits office on or by a specified date.

14.

The mother and the father and the paternal grandparents are restrained from:

(a) denigrating or criticising or using offensive or insulting language to each other or any family members to or in the presence or hearing of the child; and

(b) discussing these proceedings with or in the presence or hearing of the child or showing any documents or correspondence relating to these proceedings to the child.

15.

That the mother is to have the sole responsibility for making long term decisions about the medical care or schooling of the child.

16.

That within twelve (12) months from the date of these orders the mother must do all acts and things and sign all necessary documents to enrol the child in and facilitate the child’s attendance at a Protective Behaviours Course through the Department of Community Services or such other service provider as is recommended by the Department of Community Services.

17.

That within one month from the date of these Orders the father must arrange an appointment with the convenor or other proper officer of the Keeping Contact Program at 27 H Street P for the purpose of enrolling in a parenting after separation course.

18.

All documents produced under subpoena may be returned after one month.

19.

All other applications are dismissed save as to costs and the proceeding is removed from the list of cases awaiting finalisation.

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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