Longsdorf and Granger - [2010] FMCAfam 1423

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LONGSDORF & GRANGER

[2010] FMCAfam 1423

FAMILY LAW – Long running proceedings, significant distance between parents – extensive travel for young child – reports made to the Department of Human Services – allegations of abuse – assaults on mother from new partner in presence of the subject child and children from another relationship – significant involvement of paternal grandparents in subject child’s life and in these proceedings.

Family Law Act 1975, ss.68B, 60B, 61DA, 65DA, 65DAA, 60CC

Dylan & Dylan [2007] FamCA 842

Applicant:

MR LONGSDORF

Respondent:

MS GRANGER

File Number:

CAC 1313 of 2008

Judgment of:

Harman FM

Hearing dates:

23 & 24 August 2010 and 22 November 2010

Date of Last Submission:

22 November 2010

Delivered at:

Parramatta

Delivered on:

26 November 2010

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Dobinson Davey Clifford Simpson

Counsel for the Respondent:

Ms Reid

Solicitors for the Respondent:

Bankstown Legal

ORDERS

The court notes the undertaking of Mr Longsdorf that he shall no later than 1 March 2011, permanently relocate his permanent place of residence to the [G] area, and these orders are made following and conditional upon that undertaken.
All prior parenting orders with respect to [X] are discharged.
[X]’s mother and father shall have equal shared parental responsibility for [X].
[X] shall live with her mother as follows:
(a)Until 10 April 2011, each alternate week from 10 am Thursday until 5 pm the following Sunday, commencing 2 December;
(b)Each intervening week, from 10 am Thursday until 10 am the following Saturday commencing 9 December.
(c)From 11 April 2011 – being the start of the April 2011 school holidays:
(i)each alternate week during school terms from 10 am Thursday and until 5 pm the following Sunday, commencing the second Thursday of each term;
(ii)each intervening week from 10 am Thursday until 10 am the following Saturday, commencing the first Thursday of each term;
(iii)for the second half of each short New South Wales school holiday period, from 10 am Saturday until 5 pm the following Sunday;
(iv)each alternate week of the Christmas school holiday period, commencing 10 am on Thursday 22 December 2011, and each alternate week thereafter, running from 10 am Thursday till 10 am the following Thursday.
That [X] shall at all times other than when living with her mother, live with her father.
That for the purpose of [X] living with her mother:
(a)[X] shall sleep at the home of the maternal grandparents, Mr and Mr H –

And I pause there to make clear that’s irrespective of whether separate accommodation is obtained.

Unless otherwise agreed between the parents, and provided that as and from the commencement of block school holiday time April 2011, [X][X][X]Mr Longsdorf

Ms Granger shall be entitled to travel with [X] for holidays, but subject to her firstly and seven days prior, advising Mr Longsdorf of that intention and of the address that she will be staying with [X], and the landline telephone number…

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 Longsdorf and Granger

Details

AGLC: Longsdorf and Granger [2010] FMCAfam 1423
Case: [2010] FMCAfam 1423
Decision Date: 26 November 2010

CaseChat Overview and Summary

The case of Longsdorf and Granger involved the parties, Mr Longsdorf and Ms Granger, who were engaged in a dispute over parenting arrangements concerning their child, [X]. The Family Court of Australia was tasked with determining the legal issues surrounding the child's living arrangements, contact arrangements, and broader parenting responsibilities. The court was called upon to decide on the allocation of shared parental responsibility, the specifics of the child's residence schedule, contact arrangements with both parents, and the management of medical and educational matters.

The primary legal issues the court had to address included the determination of equal shared parental responsibility between the parents, the formulation of a detailed and balanced residence schedule for the child, and the establishment of guidelines for contact and communication between the child and each parent. Additionally, the court had to address the prevention of any negative influence on the child from a third party, Mr F, and ensure that both parents had equal access to their child's medical and educational information.

In reaching its decision, the court emphasised the importance of providing a stable and nurturing environment for the child, while also ensuring that both parents had meaningful and consistent involvement in the child's life. The court adopted a detailed and structured approach to the residence schedule, considering the child's school terms and holidays, and aimed to provide a balance that accommodated both parents' needs. Furthermore, the court mandated that both parents refrain from any negative commentary about each other in front of the child and required them to maintain open lines of communication. The court also imposed strict conditions to prevent the child from coming into contact with Mr F, highlighting the need to protect the child from potential harm.

The court's final orders included the discharge of all prior parenting orders, the establishment of equal shared parental responsibility, and a detailed residence schedule for the child, with provisions for contact and communication between the child and each parent. The court also included specific instructions for the child's living arrangements, contact protocols, and the sharing of medical and educational information. The orders were designed to provide clarity and certainty for both parents and the child, while ensuring that the child's welfare remained the paramount consideration.

Orders

Orders of the court

The court notes the undertaking of Mr Longsdorf that he shall no later than 1 March 2011, permanently relocate his permanent place of residence to the [G] area, and these orders are made following and conditional upon that undertaken.

All prior parenting orders with respect to [X] are discharged.

[X]’s mother and father shall have equal shared parental responsibility for [X].

[X] shall live with her mother as follows:

(a) Until 10 April 2011, each alternate week from 10 am Thursday until 5 pm the following Sunday, commencing 2 December;

(b) Each intervening week, from 10 am Thursday until 10 am the following Saturday commencing 9 December.

(i) each alternate week during school terms from 10 am Thursday and until 5 pm the following Sunday, commencing the second Thursday of each term;

(ii) each intervening week from 10 am Thursday until 10 am the following Saturday, commencing the first Thursday of each term;

(iii) for the second half of each short New South Wales school holiday period, from 10 am Saturday until 5 pm the following Sunday;

(iv) each alternate week of the Christmas school holiday period, commencing 10 am on Thursday 22 December 2011, and each alternate week thereafter, running from 10 am Thursday till 10 am the following Thursday.

That [X] shall at all times other than when living with her mother, live with her father.

That for the purpose of [X] living with her mother:

(a) [X] shall sleep at the home of the maternal grandparents, Mr and Mr H –

And I pause there to make clear that’s irrespective of whether separate accommodation is obtained.

Unless otherwise agreed between the parents, and provided that as and from the commencement of block school holiday time April 2011, [X][X][X]Mr Longsdorf

Ms Granger shall be entitled to travel with [X] for holidays, but subject to her firstly and seven days prior, advising Mr Longsdorf of that intention and of the address that she will be staying with [X], and the landline telephone number there connected, and Ms Granger shall not have any other adult except the maternal grandparents staying with her and [X] –

And again, I note it is adults, it does not stop [Z] and [Y].

Mr Longsdorf shall cause [X] to be delivered to the home of the maternal grandparents in [E].

For the purpose of [X] living with her father, Ms Granger shall cause [X] to be delivered to the home of the paternal grandparents in [G] –

So when they’re coming to Ms Granger, they’re delivered, when they’re returning to Mr Longsdorf, they’re delivered.

10.

That in the event Father’s Day falls on a weekend when [X] is due to be in her mother’s care until Sunday, then time for that weekend shall instead conclude 10 am Saturday. In the event that Mother’s Day falls on a weekend when [X] is not due to be in her mother’s care until Sunday, time shall extend until 5 pm Sunday. Mr Longsdorf shall be entitled to contact [X] by telephone on the landline connected to the maternal grandparents’ home between 6 and 6.30 pm on each day that [X] is in her mother’s care.

That’s both to facilitate Mr Longsdorf’s communication, and also as a safeguard to ensure that is where she is.

11.

Ms Granger shall be entitled to contact [X] by telephone on the landline connected to the paternal grandparents’ home between 6pm and 6.30pm each day she is in her father’s care.

12.

Neither party shall denigrate or criticise the other parent or any member of the other parent’s family to or in the presence or hearing of [X], nor allow, cause or permit any other person to.

13.

The parents are to keep each other informed of any medical problems or illness suffered by [X] whilst in their care, and shall inform the other parent if there’s a medical emergency concerning [X] contemporaneous with the event, such notice to include:

(a) sufficient detail to enable each parent to be fully consulted and advised with respect to any treatment options and to visit if hospitalised;

(b) any medication that has been prescribed for [X] and directions for use and the medication will travel with her;

(c) the current residential address, contact telephone numbers including both mobile and landline, and inform the other parent within 24 hours of any change;

(d) any other significant matters relevant to [X]’s welfare.

14.

Each parent shall forthwith and on an ongoing basis do all things, sign all documents and give all contents, instructions and authorities necessary to allow and enable each parent’s details to be recorded with any school, preschool, day-care centre, counsellor or therapist that [X] is attending, and so as to allow each parent to liaise with any such provider, and to participate in any such education, activity or counselling as [X] is participating in, and this shall include liaising directly with any provider in order to obtain reports or copies of documents, newsletters or assessments.

15.

[X] shall not be brought into contact, nor communicate with Mr F.

And I make very clear, for the purpose of that order, it is made pursuant to s.68B of the Family Law Act 1975, which means there is an automatic power of arrest without warrant if it is breached, and I will do it.

16.

[X] shall at all times be known as [X] Longsdorf and for all purposes.

17.

Any further application to be brought by either parent with respect to [X] is to be filed with registry and listed before me.

18.

It is hoped that the Thursday to Sunday periods that [X] is in her mother’s care will correspond to the weekends when Ms Granger’s elder children [Y] and [Z] are in her care, but these orders are in no way conditional upon that being the case.

19.

For the purposes of these orders regarding communication:

(a) the parents shall continue to maintain and use a communication book to deal with non-urgent information;

(b) any urgent information should be communicated by text message or phone, and either set of grandparents may communicate or receive information on behalf of either parent.

20.

I direct that any further application to be brought by either parent with respect to [X] is to be filed in the Parramatta registry and listed before Harman FM, and I will deal with any issues that might arise.

21.

All outstanding applications and responses are dismissed and removed from the list upon expiration of appeal period, and in the event that no appeal is lodged, all documents will be returned or destroyed and the usual order for attaching the pamphlets setting out the obligations created by the orders.

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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