M and L - [2006] FMCAfam 488

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & L

[2006] FMCAfam 488

FAMILY LAW – Children – best interests – living arrangements for two children aged 8 years and 4 years – children have an Aboriginal background from both their maternal and paternal aspects – appropriate parenting orders to facilitate meaningful relationships between children and their parents – role of grandparents – Aboriginal kinship obligations and child-rearing practices – children’s right to maintain connection and to explore Aboriginal culture considered in context of children’s cross-cultural background.

Family Law Act 1975 – ss.60B, 60CA, 60CC, 61DA, 61F, 64B, 65DAA, 65DAC, 65DAE

Mabov Queensland [No.2] 175 CLR 1
Goudge and Goudge (1984) FLC 91-534
Re: CP (1996) 21Fam LR 486
Sanders & Sanders (1976) FLC 90-078
H & H (2003) 30Fam LR 264
Brown & Ferguson (unreported) Moore J, 23 February 1998

Applicant:

S M

Respondent:

P L

File number:

DNM53 of 2006

Judgment of:

Brown FM

Hearing dates:

24 and 25 August

Delivered at:

A S

Delivered on:

15 September 2006

REPRESENTATION

Counsel for the Applicant:

Ms Davis

Solicitors for the Applicant:

Davis Norman

Counsel for the Respondent:

Ms Portelli

Solicitors for the Respondent:

North Australian Aboriginal Justice Agency

ORDERS

That all previous orders be discharged.
That the parents are to have equal shared parental responsibility for the children T L born 2 July 1998 and S L born 7 December 2001 hereinafter referred to as “the children”.
That the children are to live with the father from the end of the third term school holiday in 2006.
That the children are to spend time with the mother as follows:
(a)For the whole of the third term (September/October) Northern Territory school holiday in 2006 and each alternate even ending year thereafter;
(b)For half of the end of year (Christmas) Northern Territory school holiday being the first half in 2006 and each alternate even ending year thereafter and the second half in 2007 and each alternate odd ending year thereafter;
(c)For the whole of the end of term one (April) Northern Territory school holiday in 2007 and each alternate odd ending year thereafter;
(d)For the whole of the mid year school holiday in each year;
(e)To enable the children to attend ceremonies and other cultural practices, including funerals, associated with the maternal aspect of their family;
(f)At any other times the parties may agree from time to time.
That the children are to have the following communication with the mother:
(a)By telephone between the hours of 7.00pm and 7.30pm each Sunday with the father to facilitate the children telephoning the mother;
(b)At any other times as the children may request with the father to facilitate the making of the necessary telephone call to the mother.
That the father will be responsible for all costs, including if necessary the charter of an aircraft from G to J and return, in order to facilitate the children spending time with the mother pursuant to Orders 4(a) – (e) hereof.
That in the event that…

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

Case: [2006] FMCAfam 488
Decision Date: 15 September 2006

CaseChat Overview and Summary

The case of M and L was before the Family Court of Australia, where the parents were involved in a dispute over the care and custody of their two children, T L and S L. The parents, whose identities are protected by the initials M and L, were seeking to resolve the shared parental responsibility and living arrangements for their children, born in 1998 and 2001. The court had to determine the best living arrangements and the time to be spent with each parent, as well as the communication protocols between the children and their non-residential parent.

The primary legal issues before the court were the allocation of shared parental responsibility, the living arrangements for the children, and the specifics of the time to be spent with each parent. The court also had to consider the communication between the children and their non-residential parent, as well as the financial responsibilities associated with facilitating the children’s time with the non-residential parent. Additionally, the court addressed the need for family dispute resolution for any future major long-term issues concerning the children.

The court determined that the parents should share equal responsibility for the children, with the children primarily residing with the father. The children were to spend specific periods with the mother, including the entire third term school holiday, half of the end-of-year school holiday, and the entire end-of-term one school holiday, alternating between even and odd years. The children were also to have the mid-year school holiday with the mother each year and additional time for cultural practices. The communication between the children and the mother was to occur by telephone on Sunday evenings and at other times as requested by the children. The court ruled that the father would bear the costs of facilitating the children’s time with the mother, including any necessary air travel. Lastly, the court mandated that the parents engage in family dispute resolution for any major long-term issues concerning the children.

The court's final orders included the discharge of all previous orders, equal shared parental responsibility for the children, specific living arrangements with the father and visitation periods with the mother, detailed communication protocols between the children and the mother, financial responsibilities for facilitating the children's time with the mother, and a requirement for family dispute resolution for future major long-term issues. The applications were otherwise dismissed.

Orders

Orders of the court

That all previous orders be discharged.

That the parents are to have equal shared parental responsibility for the children T L born 2 July 1998 and S L born 7 December 2001 hereinafter referred to as “the children”.

That the children are to live with the father from the end of the third term school holiday in 2006.

That the children are to spend time with the mother as follows:

(a) For the whole of the third term (September/October) Northern Territory school holiday in 2006 and each alternate even ending year thereafter;

(b) For half of the end of year (Christmas) Northern Territory school holiday being the first half in 2006 and each alternate even ending year thereafter and the second half in 2007 and each alternate odd ending year thereafter;

(c) For the whole of the end of term one (April) Northern Territory school holiday in 2007 and each alternate odd ending year thereafter;

(d) For the whole of the mid year school holiday in each year;

(e) To enable the children to attend ceremonies and other cultural practices, including funerals, associated with the maternal aspect of their family;

(f) At any other times the parties may agree from time to time.

That the children are to have the following communication with the mother:

(a) By telephone between the hours of 7.00pm and 7.30pm each Sunday with the father to facilitate the children telephoning the mother;

(b) At any other times as the children may request with the father to facilitate the making of the necessary telephone call to the mother.

That the father will be responsible for all costs, including if necessary the charter of an aircraft from G to J and return, in order to facilitate the children spending time with the mother pursuant to Orders 4(a) – (e) hereof.

That in the event that the parties cannot come to a joint decision about any major long term issue concerning the children, they will do all things necessary to participate in family dispute resolution with a person authorised pursuant to the Family Law Act 1975 to conduct such family dispute resolution.

That the applications be otherwise dismissed.

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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