Maloney and Maloney - [2011] FMCAfam 51

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MALONEY & MALONEY

[2011] FMCAfam 51

FAMILY LAW – Children – parenting plan not child-focussed – whether child should live with father in Tasmania or with mother in Victoria – mother’s involvement in prostitution – travel to Philippines – child’s best interests.

Family Law Act 1975 (Cth) ss.60B,60CA, 60CC, 61DA, 65DAA

Aldridge & Keaton (2009) FLC 93-421
KB & TC (2005) FLC 93-224
Carpenter and Lunn (2008) FLC 93-377
Champness & Hanson (2009) FLC 93-407
Chappell and Chappell (2008) FLC 93-382
Cilento and Cilento (1980) FLC 90-847
Cowling v Cowling (1998) FLC 92-801
Goode and Goode (2006) FLC 93-286
Griffiths and Griffiths (1981) FLC 91-064
Mills & Watson [2008] FMCAfam 2
MRR v GR (2010) FLC 93-424
Mulvaney & Lane (2009) FLC 93-404
N v N (1997) FLC 92-782

Applicant:

MR MALONEY

Respondent:

MS MALONEY

File Number:

LNC314 of 2009

Judgment of:

Roberts FM

Hearing date:

3 & 4 November 2010

Date of Last Submission:

4 November 2010

Delivered at:

Launceston

Delivered on:

28 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr B Crawford

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Ms J Higgins

Solicitors for the Respondent:

Coulter Roache

ORDERS

That orders 1 to 9 inclusive of the orders made on 30 April 2010 are discharged.
MR MALONEY (“the father”) and MS MALONEY (“the mother”) have equal shared parental responsibility for [X] born [in] 2002 (“the child”).
That the child is to live with the father in Tasmania.
That the child spend time with and communicate with the mother as follows:
(a)in Victoria for the entirety of the child’s Tasmanian school holidays at Easter and at the end of each of her first and second school terms;
(b)in Victoria for one half of the child’s Tasmanian long summer school holidays, being:
(i)the first half when those holidays start in an even numbered year;
(ii)the second half when those holidays start in an odd numbered year;
(c)in Victoria for a minimum of two weekends during each of the child’s Tasmanian school terms, as agreed between the father and the mother, but failing agreement the first such weekend during each school term is to be the fourth weekend after the last weekend in the preceding school holiday and the second such weekend is to be the fourth weekend thereafter;
(d)by telephone and email at least three times weekly and on the child’s birthday, Christmas day and Mothers’ day if those days occur when the child is with the father.
That on each occasion that the child is travelling from Tasmania to Victoria for the purpose of spending time with the mother, the father must book and pay for the child’s travel.
That subject to the availability of suitable airline bookings for the unaccompanied travel of the child, the father must ensure that the time of departure for a plane on which the child is travelling in either direction is between 4.00 p.m. and 6.00 p.m.
That the father and the mother are permitted…

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 Maloney and Maloney

Details

AGLC: Maloney and Maloney [2011] FMCAfam 51
Case: [2011] FMCAfam 51
Decision Date: 28 January 2011

CaseChat Overview and Summary

In the case of Maloney and Maloney, the court considered disputes between the parents regarding the arrangements for their child, born in 2002. The parents, MR MALONEY (the father) and MS MALONEY (the mother), were required to reach an agreement on shared parental responsibilities and the living arrangements for their child. The case involved the court's assessment of the best interests of the child in the context of parental disputes, focusing on living arrangements, visitation schedules, and communication between the parents.

The legal issues before the court included determining the allocation of parental responsibility, the primary residence of the child, and the specifics of visitation and communication between the child and the non-residential parent. The court had to balance the need for stability in the child's life against the importance of maintaining a relationship with both parents. The court also had to address the logistics of travel arrangements, the need for timely communication between parents, and the implications of international travel on the child's well-being.

In resolving these issues, the court emphasised the importance of the child maintaining a connection with both parents while ensuring that the primary residence provided the child with a stable environment. The court granted equal shared parental responsibility to both parents and decided that the child would primarily reside with the father in Tasmania. The court outlined a detailed visitation schedule for the mother, ensuring that the child would spend substantial periods with her during school holidays and specific weekends. The court also mandated that the father facilitate travel arrangements for the child, ensuring safe and timely travel, and imposed conditions on international travel to the Philippines, including the need for advance notification and adherence to return schedules. The court underscored the necessity for both parents to keep each other informed about the child’s health, education, and any changes in contact details.

The court's final orders included provisions for the discharge of previous orders, the establishment of equal shared parental responsibility, the primary residence of the child with the father, and a comprehensive schedule for the child's time with the mother. The court also detailed travel requirements, communication protocols, and restrictions on international travel, as well as obligations for the parents to share information about the child's education and health. The orders reflect a balanced approach to ensuring the child's welfare and maintaining meaningful relationships with both parents.

Orders

Orders of the court

That orders 1 to 9 inclusive of the orders made on 30 April 2010 are discharged.

MR MALONEY (“the father”) and MS MALONEY (“the mother”) have equal shared parental responsibility for [X] born [in] 2002 (“the child”).

That the child is to live with the father in Tasmania.

That the child spend time with and communicate with the mother as follows:

(a) in Victoria for the entirety of the child’s Tasmanian school holidays at Easter and at the end of each of her first and second school terms;

(b) in Victoria for one half of the child’s Tasmanian long summer school holidays, being:

(i) the first half when those holidays start in an even numbered year;

(ii) the second half when those holidays start in an odd numbered year;

(c) in Victoria for a minimum of two weekends during each of the child’s Tasmanian school terms, as agreed between the father and the mother, but failing agreement the first such weekend during each school term is to be the fourth weekend after the last weekend in the preceding school holiday and the second such weekend is to be the fourth weekend thereafter;

(d) by telephone and email at least three times weekly and on the child’s birthday, Christmas day and Mothers’ day if those days occur when the child is with the father.

That on each occasion that the child is travelling from Tasmania to Victoria for the purpose of spending time with the mother, the father must book and pay for the child’s travel.

That subject to the availability of suitable airline bookings for the unaccompanied travel of the child, the father must ensure that the time of departure for a plane on which the child is travelling in either direction is between 4.00 p.m. and 6.00 p.m.

That the father and the mother are permitted to remove the child from Australia for the purpose of travel to the Philippines during any non-school period while the child is not spending time with the other parent in accordance with these orders, provided that;

(a)

the parent taking the child to the Philippines provides the other parent with a detailed itinerary of the child’s travel at least

21 days prior to the child’s scheduled date of departure; and

(b) the child is returned to Australia in time for any passing into the care of the other parent in accordance with these orders.

That if there has been compliance with sub-paragraph (a) of Order No. 7 hereof the child’s passport is to be provided to the parent taking the child to the Philippines at least 10 days prior to the child’s scheduled date of departure for the Philippines.

That the father and the mother are each hereby restrained from removing the child from Australia unless and until there has been compliance with sub-paragraph (a) of Order No. 7 hereof.

10.

That the father must do all things necessary to ensure that the mother obtains information in relation to the child’s education (including but not limited to school reports, school photographs, order forms and notices).

11.

That the father and the mother must each inform the other fully of any illness or accident suffered by the child and, except in the case of an emergency, must each consult with the other prior to the child receiving medical treatment or undergoing surgery.

12.

That the father and the mother must notify the other of any change of address or telephone number within 48 hours of such change.

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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