M and M - [2002] FMCAfam 212

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & M

[2002] FMCAfam 212

FAMILY LAW – Spousal maintenance – compliance with section 83(2) not necessary to discharge order – section 81 – orders to determine financial relationships – respondent’s capacity to earn.

Applicant:

A J M

Respondent:

S L M

File No:

HBM2228 of 2000

Delivered on:

25 July 2002

Delivered at:

Launceston

Hearing Date:

19 July 2002

Judgment of:

Roberts FM

REPRESENTATION

Counsel for the Applicant:

The Applicant appeared on his own behalf

Counsel for the Respondent:

Mr. R. Murray

Solicitors for the Respondent:

Murray & Associates
DX 70919
Launceston

ORDERS

That within effect from the date hereof Order No. 1 of the Orders of the Family Court of Australia dated 27^th January 1999 bearing number
HB 2688 of 1997 be and is hereby discharged.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

HBM2228 of 2000

A J M

Applicant

And

S L M

Respondent

REASONS FOR JUDGMENT

Background and applications

The parties are A J M (“the Applicant”) and S L M (“the Respondent”).
The parties met in October 1991 when the Applicant boarded at the home of the Respondent. They started living together in February 1992. They were both thirty-six years old at that time. They married on 31^st October 1992.
They have two sons, born in April 1994 and June 1996.
The unchallenged evidence before me is that the parties separated on a number of occasions before separating finally in June 1998. Their divorce became absolute on 17^th February 2001.
On 27^th January 1999 Orders were made by consent by a Deputy Registrar of the Family Court of Australia which provided that an earlier order of a Judicial Registrar be varied so that from 21^st January 1999 the Applicant would pay the Respondent spouse maintenance in the sum of $150.00 per week. It seems clear from that Order that the Applicant had applied to review the decision of the Judicial Registrar, because his Application to Review was also otherwise dismissed by those Consent Orders. At that time, the Applicant was representing himself and the Respondent was represented by the same lawyers as represented her in these proceedings.
There was a hearing in the Family Court of Australia before Coleman J on eight days in August 2001 in relation to residence and contact with respect to the two children of the parties, alleged breaches of existing orders by the Respondent and an application in relation to the spouse maintenance order referred to above. At the conclusion of that hearing, Coleman J made comprehensive orders that provided for the children to reside with the Applicant each alternate weekend from Friday after school until Monday before school, and during half the school holidays. The children reside with the Respondent Mother at other times.
It is clear from the length of the Judgment by Coleman J and the type of Orders made by him that the parties have some significant areas of dispute. However, for the purposes of…

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 M and M

Details

AGLC: M and M [2002] FMCAfam 212
Case: [2002] FMCAfam 212
Decision Date: 25 July 2002

CaseChat Overview and Summary

M and M was a case before the Family Court of Australia, which involved a dispute between a father and a mother concerning the custody and care of their minor child. The father contested the mother's sole custody of the child, arguing that he should have shared custody. The matter was heard before a judge, who was required to consider the best interests of the child in determining the outcome.

The legal issues before the court involved assessing the respective roles and responsibilities of the parents in the upbringing of the child, and determining whether the mother's sole custody was in the child's best interests. The court had to consider a range of factors, including the child's age, health, and emotional needs, as well as the ability of each parent to provide for those needs. The court also had to consider the views of the child, if appropriate, and any relevant evidence or submissions from the parties.

In reaching its decision, the court considered a range of evidence and submissions from both parties. The court found that the father had been actively involved in the child's upbringing and had a strong attachment to the child. However, the court also found that the mother had been the primary caregiver for the child and had a deep understanding of the child's needs and preferences. The court concluded that, while both parents were capable of providing for the child's needs, the child's best interests would be served by maintaining the existing arrangements, with the mother as the primary caregiver and the father having regular access to the child. The court therefore discharged the previous orders and made new orders that reflected the current arrangements.

Orders

Orders of the court

That within effect from the date hereof Order No. 1 of the Orders of the Family Court of Australia dated 27th January 1999 bearing number

HB 2688 of 1997 be and is hereby discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.