Landis & Landis - [2010] FMCAfam 1283

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANDIS & LANDIS

[2010] FMCAfam 1283

FAMILY LAW – Children – Interim parenting orders – best interests of the child – child aged eleven months – equal shared parental responsibility – family violence issues.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 68L
Australian Citizenship Act 2007 (Cth), s.12

Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant:

MS LANDIS

Respondent:

MR LANDIS

File Number:

SYC 4810 of 2010

Judgment of:

Scarlett FM

Hearing date:

3 November 2010

Date of Last Submission:

3 November 2010

Delivered at:

Sydney

Delivered on:

23 November 2010

REPRESENTATION

Solicitor for the Applicant:

Mr Cohen

Solicitors for the Applicant:

David H. Cohen & Co

Counsel for the Respondent:

The Respondent appeared in person

Solicitors for the Respondent:

No solicitor on the record

Solicitor for the Independent Children’s Lawyer:

Mr Samuel

Solicitors for the Independent Children’s Lawyer:

Brian Samuel & Associates

ORDERS UNTIL FURTHER ORDER

All previous parenting orders are discharged.
The child [X] born [in] 2009 is to live with the Respondent Father.
The child [X] is to spend time with the Applicant Mother:
(a)From 8:30am to 1:00pm each Monday, Wednesday and Friday, commencing on Monday 29 November 2010; and
(b)From and after Monday 28 February 2011, from 8:30am to 5:30pm each Monday, Wednesday and Friday.
Notwithstanding Order 3(a) above, the child [X] is to remain in the care of the Father on Monday 27 December 2010.
For the purposes of Order 3(a) above, the Father will deliver the said child to the Mother at 8:30am each Monday, Wednesday and Friday in the foyer of the [D] Police Station and the Mother is to return the child to the day care provider MS N at 1:00pm at her home at [address omitted] in the State of New South Wales.
For the purposes of Order 3(b) above, the Father will deliver the child to the Mother at 8:30am each Monday, Wednesday and Friday in the foyer of the [D] Police Station and the Mother will return the child to the care of the Father at 5:30pm each Monday, Wednesday and Friday in the foyer of the [D] Police Station.
Neither the Applicant Mother nor the Respondent Father are to change their residential address or contact telephone numbers without first notifying each other and the Independent Children’s Lawyer in writing.
The parties are restrained and injunctions hereby granted restraining each of them from abusing, harassing or interfering with each other and from denigrating each other in the presence of the said child and from permitting any other person to do so.
The parties are restrained and injunctions hereby granted restraining each of them from attending the other’s place of employment except by way of written consent from the other party.
The parties are restrained and injunctions are hereby granted restraining each of them from removing the said child from the Sydney metropolitan area except between 1:00pm on Friday 24 December and 10:00pm on Monday 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.

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Details

AGLC: Landis & Landis [2010] FMCAfam 1283
Case: [2010] FMCAfam 1283
Decision Date

CaseChat Overview and Summary

The case before the Federal Magistrates Court of Australia involves an application for interim parenting orders concerning the parties' infant daughter, [X], who was born in 2009. The mother, MS LANDIS, seeks an order that the child should live with her, a request opposed by the father, MR LANDIS. The Independent Children’s Lawyer does not support the mother's application. The parties met online in May 2007, married in Thailand in May 2008, and the child was born in 2009. The mother, a Thai national, arrived in Australia on a temporary spouse visa sponsored by the father. The parties separated in June 2010, with each party accusing the other of domestic violence and questioning the other's parenting capacity.

The court identified several legal issues, including the best interests of the child, the capacity of each parent to provide for the child's needs, and the potential for family violence. The court considered the primary considerations under the Family Law Act 1975, such as the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm. The court also evaluated the additional considerations, including the practical difficulties and expense of the child spending time with each parent, and the likely effect of any changes in the child's circumstances.

The court determined that the child's best interests were served by her continuing to live with the father, with regular and increasing time with the mother. The court ordered that the child should spend time with the mother from 8:30am to 1:00pm each Monday, Wednesday, and Friday, starting on 29 November 2010, and that this time should increase to 8:30am to 5:30pm on the same days starting 28 February 2011. The court further ordered that changeovers should take place at the [D] Police Station to avoid altercations between the parents. Additionally, the court restrained both parties from removing the child from Australia and ordered that her name be placed on the Airport Watch List maintained by the Australian Federal Police. The matter is adjourned for a final hearing in May 2011.

Orders