M & K - [2007] FMCAfam 214

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & K

[2007] FMCAfam 214

FAMILY LAW – Relocation – parental responsibility – issues about both parents capacity to care for the child.

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

Goode v Goode [2006] FAmCA 1346
Godfrey & Sanders [2007] FamCA 102
H & H [2007] FMCAfam 27
J & R (2007) FMCAfam 181
M & K [2007] FMCAfam 26
M & S [2006] FamCA 1408
R and R: Children’s Wishes (2000) FLC93-000

Applicant:

Respondent:

File Number:

WOC119 of 2007

Judgment of:

Altobelli FM

Hearing date:

19 March 2007

Date of Last Submission:

20 March 2007

Delivered at:

Sydney

Delivered on:

7 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr Alexander

Solicitors for the Applicant:

Verekers Lawyers

Counsel for the Respondent:

Mr Hansen

Solicitors for the Respondent:

Lees Lawyers

Counsel for the Independent Children’s Lawyer

Mr Macpherson

Solicitors for the Independent Children’s Lawyer

Legal Aid Commission of NSW

ORDERS

Orders for parental responsibility

That the Mother and the Father are to have equal shared parental responsibility for the child C in relation to the care, welfare and development of a long-term nature involving the child to include, but not be limited to, issues about:-
(a)the education of the child – both current and future;
(b)the religion of the children;
(c)the health of the children;
(d)any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.
That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the child and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of any of the child and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the children
That each parent be entitled to attend all events involving the child including, but not limited to:-
(a)sporting fixtures;
(b)extra curricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation – AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parents.

Orders for day to day care, welfare and development

That the Father shall have sole responsibility for making decisions…

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 & K

Details

AGLC: M & K [2007] FMCAfam 214
Case: [2007] FMCAfam 214
Decision Date: 7 June 2007

CaseChat Overview and Summary

The case involves parents of a child, referred to as "C," who are litigating over parental responsibility, care, and communication arrangements. The Family Court of Australia was tasked with determining the appropriate arrangements for the child's upbringing, including the allocation of parental responsibility, decision-making authority, and contact arrangements between the child and each parent. The court was required to balance the best interests of the child with the rights and responsibilities of both parents, considering factors such as the child's need for a meaningful relationship with both parents and the potential impact of parental conflict on the child.

The court considered extensive evidence and submissions from both parties, focusing on the child's needs, the parents' capabilities, and the overall welfare of the child. In making its decisions, the court emphasised the importance of minimising conflict between the parents and ensuring that both parents have a meaningful role in the child's life. The court also highlighted the necessity for both parents to cooperate in the child's upbringing and to avoid exposing the child to derogatory remarks or negative influences.

The court ordered that both parents have equal shared parental responsibility for the child in relation to significant long-term issues, including education, religion, health, and changes to living arrangements. It mandated that each parent refrain from making critical or derogatory remarks about the other parent in the child's presence and ensure that no other person does so. Additionally, the court granted each parent the right to attend events involving the child, with the parent having the child in their care on the day responsible for the child's day-to-day care during the event. The court also established specific communication and decision-making protocols to facilitate cooperation between the parents and ensure the child's welfare.

The final orders include detailed arrangements for the child's living and spending time with each parent, with specific timelines and conditions for transitions. The court also mandated that both parents participate in dispute resolution and mediation before seeking further court intervention. The court emphasised the importance of ongoing communication between the parents and the child, with specific provisions for regular telephone contact and information sharing between parents and the child. The orders also include detailed logistical arrangements for the child's travel between parents, ensuring smooth transitions and minimising disruption to the child's routine.

Orders

Orders of the court

Orders for parental responsibility

That the Mother and the Father are to have equal shared parental responsibility for the child C in relation to the care, welfare and development of a long-term nature involving the child to include, but not be limited to, issues about:-

(a) the education of the child – both current and future;

(b) the religion of the children;

(d) any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.

That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the child and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children.

That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of any of the child and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the children

That each parent be entitled to attend all events involving the child including, but not limited to:-

(a) sporting fixtures;

(b) extra curricular activities that allow for parental attendance or participation;

(c) school functions and events that allow for parental attendance or participation – AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parents.

Orders for day to day care, welfare and development

That the Father shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the child lives with or spends time with the Father.

That the Mother shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the child lives with or spends time with the Mother.

Orders for parental communication

That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:-

(a) any medical problems or illness suffered by the child, whilst in the care of the Father;

(b) any medication that has been prescribed for the child;

(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;

(d) any social, school or religious functions which the child is to attend;

(e) the residential address of the Father;

(f) the telephone contact number of the Father;

(g) any other matter relevant to the welfare of the child.

That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:-

(a) any medical problems of illness suffered by the child, whilst in the care of the Mother;

(b) any medication that has been prescribed for the child;

(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;

(d) any social, school or religious functions which the child is to attend;

(e) the residential address of the Mother;

(f) the telephone contact number of the Mother;

(g) any other matter relevant to the welfare of the child.

Orders for dispute resolution

That in the event the parents cannot reach a joint decisions about:-

(a) a major long-term issue involving the child; or

(b) the interpretation of these Orders; or

(d) enforcement of these Orders; which involve the children, each of the parents will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act.

10.

That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the child or of the parties, each of the parents is to take the following steps:-

(a) the Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act;

(b) the Father and the Mother shall each participate in Family Dispute Resolution with a person authorised under the Family Law Act.

Orders for living with each parent

11.

The child shall live with the Father.

Orders for spending time with each parent upon significant occasions

12.

That the child shall live with the Mother as follows:-

A. In the event the Mother continues to live in Queensland

(a) For the whole of the school holidays at the conclusion of Terms 2 and 3;

(b) For one half of the school holidays at the conclusion of Term 1;

(d) At such other times as the parties agree from time to time;

(e) Upon one weekend during each school term during the year. Such weekend to be nominated by the mother at least four weeks in advance and to be at her option either in N or in Queensland.

B. In the event that the mother relocates to live in the N area:

(a) From the conclusion of school on Friday until the commencement of school on the following Monday (or Tuesday in the event Monday is a holiday or pupil free day) on each alternate weekend

(b) From 9am Mother’s Day until the commencement of school on the Monday morning following Mother’s day;

(d) For one half of the school holidays at the conclusion of Term 1

(e) For one half the of the Christmas Summer school holidays;

(f) On the birthdays of the child and the Mother for a duration of 2 hours at times to be agreed between the parties if occurring on a school day and for a duration of 4 hours if occurring on a non school day, and in each case if there is no agreement, commencing from 4.00pm;

(g) Christmas Day- at times to be agreed between the parties, but failing agreement between 10.00am and 3.00pm in odd-cumbered years, and 3.00pm-8.00pm on even numbered years.

Orders for communication

13.

That the child shall have the following communication with the Father:-

(a) Regular telephone communication during times the child is in the care of the Mother.

14.

That the child shall have the following communication with the Mother:-

(a) Regular telephone communication during times the child is in the care of the Father.

15.

That for the purpose of communicating information between the parents, the Father and the Mother shall communicate by:

(a) telephone.

Orders for transportation:-

16.

That for the purposes of the facilitation of these Orders

(a) The Mother shall be responsible for booking and payment of the Child’s airfare from Sydney to Brisbane. The Mother is to provide written evidence of the payment and booking to the father at least six weeks prior to any period of travel.

(b) Upon receipt of above, the Father shall be responsible for booking and payment of the Child’s airfare from Brisbane to Sydney. The Father is to provide written evidence of payment and booking of the return flight to the Mother at least four weeks prior to date of travel to Brisbane.

(d) The Father shall be responsible for the delivery and collection of the Child at Sydney airport.

Additional orders

17.

That Order 12B of these Orders shall be suspended during school holiday periods AND for the purposes of ascertaining the dates of resumption of Order 12B following the conclusion of the school holiday period, the weekends shall notionally be counted through the holiday school periods.

18.

Both parents are restrained from:

(a) Consuming any prohibited drugs, including but not limited to marijuana and amphetamines for twenty four hours prior to and during any period in which the child is in their care.

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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