Manzer & Almy - [2008] FMCAfam 901

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANZER & ALMY

[2008] FMCAfam 901

FAMILY LAW – Parenting orders – relocation.

Family Law Act 1975, Part VII

Taylor and Barker (2007) 37 FamLR 461
Sampson and Hartnett (No 10) (2008) 38 FamLR 315

Applicant:

MR MANZER

Respondent:

MS ALMY

File Number:

NCC 2614 of 2007

Judgment of:

Lapthorn FM

Hearing dates:

22, 23 January, 6 February 2008

Date of Last Submission:

6 February 2008

Delivered at:

Newcastle

Delivered on:

Orders: 6 February 2008

Reasons: 21 August 2008

REPRESENTATION

Advocate for the Applicant:

Mr Byrnes

Solicitors for the Applicant:

Byrnes Lawyers

Counsel for the Respondent:

Mr Davies

Solicitors for the Respondent:

McCabe Partners

ORDERS

The mother and father have joint parental responsibility for the children of the relationship [X] born in 2002 and [Z] born in 2004 (“the children”).
From the date of this order until the mid point of the holidays at the end of Term 1 of the New South Wales School Year in 2008 the children shall live with the mother save and except as follows when they shall spend time with the father:
(2.1) from 9:00am on 21 March 2008 until 9:00am on 25 March 2008 provided that the mother shall deliver the children to the father at McDonalds, [P] at the commencement of such period and shall collect the children from the father at McDonalds, [P] at the conclusion of such period;
Conditional on the father:
(3.1) paying to the mother or as she otherwise directs the sum of $4,000 by 19 March 2008; and
(3.2) paying for a removalist to remove the mother’s furniture, goods and possessions from [Y] to [P];
the children shall as and from the mid point of the holidays at the end of Term 1 of the New South Wales School Year in 2008, live in [P] subject to the provisions of orders 4 - 8 below.
From the time the children live in [P] until the end of 2008 the children shall:
(4.1) spend time with the father as follows:
(4.1.1)   for the second half of the School Holidays at the end of Term 1 of the New South Wales School Year;
(4.1.2)   from after school on Friday until the commencement of school on Monday morning each alternate week commencing the second Friday after [X] commences school in the [P] area;
(4.1.3)   from after school on Wednesday until the commencement of school on Thursday each Wednesday, commencing from the first Wednesday after [X] commences school in [P];
(4.1.4)   for one half of each School Holidays other than the Christmas School Holidays in 2008;
(4.1.5)   from 12:00 noon on Christmas Day for a period equivalent to one half of the Christmas School Holidays;
(4.1.6)   provided that if the father is not otherwise spending time with the children pursuant to order 4.1.2 above on Father’s Day, he shall spend from 9:00am until 6:00pm with the children on that day with the mother to deliver the children to the father at 9:00am at…

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 Manzer & Almy

Details

AGLC: Manzer & Almy [2008] FMCAfam 901
Case: [2008] FMCAfam 901
Decision Date: 21 August 2008

CaseChat Overview and Summary

The case of Manzer & Almy involved a dispute between the parents of two children over their care arrangements. The parents, referred to as the mother and father, had been in a relationship but were no longer together. They sought the court's determination regarding the children's living arrangements and the allocation of parental responsibility. The case was heard and decided in the Family Court of Australia.

The primary legal issues the court had to decide were the allocation of parental responsibility between the parents and the specific living arrangements for the children. The court had to consider the best interests of the children in determining these matters, taking into account various factors such as the children's needs, the ability of each parent to provide for those needs, and the importance of both parents having a meaningful relationship with the children.

The court's reasoning, as set out in the orders, was based on a comprehensive analysis of the evidence presented and the principles of family law. The court found that it was in the best interests of the children for both parents to have joint parental responsibility. The court then proceeded to outline detailed living arrangements for the children, taking into account their ages, the proximity of the parents' residences, and the need for stability and continuity in their lives. The court also imposed specific conditions on the father, including financial contributions and the relocation of certain belongings, to facilitate the children's transition to a new living arrangement.

The final orders of the court provided for a structured and balanced arrangement of parental responsibility and living arrangements for the children, with specific provisions for holidays, weekends, and special occasions. The court also included provisions for communication between the parents and the children, as well as restrictions on the parents' behaviour in the presence of the children and their use of certain terms and surnames. The orders were designed to promote the children's well-being and to ensure that both parents could maintain a meaningful relationship with them.

Orders

Orders of the court

The mother and father have joint parental responsibility for the children of the relationship [X] born in 2002 and [Z] born in 2004 (“the children”).

From the date of this order until the mid point of the holidays at the end of Term 1 of the New South Wales School Year in 2008 the children shall live with the mother save and except as follows when they shall spend time with the father:

(2.1) from 9:00am on 21 March 2008 until 9:00am on 25 March 2008 provided that the mother shall deliver the children to the father at McDonalds, [P] at the commencement of such period and shall collect the children from the father at McDonalds, [P] at the conclusion of such period;

Conditional on the father:

(3.1) paying to the mother or as she otherwise directs the sum of $4,000 by 19 March 2008; and

(3.2) paying for a removalist to remove the mother’s furniture, goods and possessions from [Y] to [P];

the children shall as and from the mid point of the holidays at the end of Term 1 of the New South Wales School Year in 2008, live in [P] subject to the provisions of orders 4 - 8 below.

From the time the children live in [P] until the end of 2008 the children shall:

(4.1) spend time with the father as follows:

(4.1.1) for the second half of the School Holidays at the end of Term 1 of the New South Wales School Year;

(4.1.2) from after school on Friday until the commencement of school on Monday morning each alternate week commencing the second Friday after [X] commences school in the [P] area;

(4.1.3) from after school on Wednesday until the commencement of school on Thursday each Wednesday, commencing from the first Wednesday after [X] commences school in [P];

(4.1.4) for one half of each School Holidays other than the Christmas School Holidays in 2008;

(4.1.5) from 12:00 noon on Christmas Day for a period equivalent to one half of the Christmas School Holidays;

(4.1.6) provided that if the father is not otherwise spending time with the children pursuant to order 4.1.2 above on Father’s Day, he shall spend from 9:00am until 6:00pm with the children on that day with the mother to deliver the children to the father at 9:00am at [P] and the father to return the children to the mother at [P] at 6:00pm;

(4.1.7) in the event that pursuant to orders 4.1.2 or 4.1.4 the father would be spending time with the children on Mother’s Day, such time spent shall be suspended and the mother shall instead spend time with the children from 9:00am until 6:00pm on such day with the father to deliver the children to the mother at McDonalds at 9:00am on that day and the mother to return the children to the father at McDonalds at 6:00pm on that day;

(4.2) live with the mother at all other times.

From the beginning of 2009 until the end of the School Holidays at the end of Term 1 of the 2010 New South Wales School Year the children shall:

(5.1) spend time with the father as follows:

(5.1.1) from after school Thursday until the commencement of school on Tuesday each alternate week commencing on the second Thursday after the commencement of the school Term;

(5.1.2) from after school on Monday until the commencement of school on Tuesday each alternate week commencing on the first Monday after the commencement of the School Year;

(5.1.3) for one half of each School Holidays other than the Christmas School Holidays in 2009;

(5.1.4) for the first half of the 2009 Christmas School Holidays provided such time spent shall be suspended from 12:00 noon on Christmas Day until 12:00 noon on Boxing Day and the children shall spend time with the mother instead;

(5.1.5) provided that if the father is not otherwise spending time with the children pursuant to order 5.1.1 above on Father’s Day he shall spend from 9:00am until 6:00pm with the children on that day with the mother to deliver the children to the father at 9:00am at [P] and the father to return the children to the mother at [P] at 6:00pm;

(5.1.6) in the event that pursuant to orders 5.1.1 or 5.1.3 the father would be spending time with the children on Mother’s Day, such time spent shall be suspended and the mother shall instead spend time with the children from 9:00am until 6:00pm on such day with the father to deliver the children to the mother at McDonalds at 9:00am on that day and the mother to return the children to the father at McDonalds at 6:00pm on that day;

(5.2) live with the mother at all other times.

From the commencement of Term 2 of the 2010 School Year the children shall:

(6.1) live with equally the father and the mother on a “week about” basis except as set out below, commencing from the conclusion of school on Fridays, with the parent with whom the children did not spend time in the last one half of the Term 1 School Holidays to have the children live with them from the conclusion of those School Holidays until the next Friday with the week about arrangement to be implemented thereafter;

(6.2) provided that if the father is not otherwise spending time with the children pursuant to order 6.1 above on Father’s Day he shall spend from 9:00am until 6:00pm with the children on that day with the mother to deliver the children to the father at 9:00am at [P] and the father to return the children to the mother at [P] at 6:00pm;

(6.3) provided that if the mother is not otherwise spending time with the children pursuant to order 6.1 above on Mother’s Day she shall spend from 9:00am until 6:00pm with the children on that day with the father to deliver the children to the mother at 9:00am at [P] and the mother to return the children to the father at [P] at 6:00pm;

(6.4) the week about arrangement shall be suspended during each Christmas School Holiday and instead the children shall live with the mother for the first half of the 2010 School Holidays and each alternate year thereafter and with the father for the second half in such years and with the father for the first half of the 2011 School Holidays and each alternate year thereafter and with the mother for the second half in such years;

(6.5) the parent with whom the children are not living with in the first half of such Christmas School Holidays shall spend time from 12:00 noon on Christmas Day until 12:00 noon on Boxing Day with the children;

In the event of the father failing to make the payments referred to in order 3 above then:

(7.1) in the event of him relocating to [Y] the provisions of orders 4, 5 and 6 above shall apply (save and except for the reference in [P] in order 4 being deleted and replaced with “[Y]”);

(7.2) in the event of him not relocating to [Y]:

(7.2.1) the children shall live with the mother;

(7.2.2) the father shall spend time with the children as follows:

(7.2.2.1) all of the School Holidays at the end of the New South Wales School Terms 1 and 3;

(7.2.2.2) for one half of the School Holidays at the end of Terms 2 and 4 alternating between the first half in odd numbered years and the second half in even numbered years;

(7.2.2.3) for one weekend each School Term from 3:00pm Friday until 6:00pm Sunday;

(7.2.2.4) as otherwise agreed.

If pursuant to these orders the mother relocates to [P] or the father relocates to [Y], both parties are restrained from living more than

30 kilometres from the [P] or [Y] Post Office (as the case may be) without the written consent of the other party or the leave of the Court.

The parties are to have liberal telephone communication with the children whenever the children are in the other party’s care. The children are to be afforded privacy during each of their telephone calls.

10.

Both parties keep the other informed of a telephone contact number and residential address at all times and where there is any change of such number and/or address the party whose number and/or address is changed is to notify the other as soon as reasonably practicable and not later than 48 hours of the change of number and/or address.

11.

Each party is to telephone the other as soon as practicable upon the happening of any of the following:

(11.1) either child becoming seriously ill;

(11.2) either child becoming hospitalised; or

(11.3) either child being involved in an accident.

12.

Each party be and is hereby required to use all reasonable endeavours to ensure the children maintain their social educational and sporting commitments during each period the children are with that party.

13.

Each party be and is hereby restrained from denigrating the other in the presence of the children or knowingly permitting any other person to do so.

14.

Neither party is to smoke indoors or in a motor vehicle in the presence of the children and either party is to remove the children from the presence of any other person smoking indoors or in a motor vehicle in the presence of the children.

15.

The parties are restrained from permitting the children to call any other persons by the title “Mum” or “Dad”.

16.

The parties are restrained from permitting the children to use any other surname other than their given birth surname.

17.

Where any time spent with the children commences or concludes at school the drop off and collection point shall be such school. Where no specific reference to a drop off or collection point is given such point shall be:

(17.1) McDonalds in [P];

(17.2) McDonalds, [Y].

18.

The children shall attend a school appropriate to the zone in which they are living with the mother provided such school shall be within

30 kilometres of the [P] Post Office and shall not be [T] or [B] Primary School.

19.

The mother will do all acts and provide all information reasonably requested by the father to enable him to comply with order 3.2 above.

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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