Marte and Moulin - [2007] FamCA 1501

FAMILY COURT OF AUSTRALIA

MARTE & MOULIN

[2007] FamCA 1501

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Parental responsibility

Family Law Act 1975 (Cth)

APPLICANT:

Ms Marte

RESPONDENT:

Mr Moulin

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

FILE NUMBER:

SYF

3215

2004

DATE DELIVERED:

12 December 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

13 December 2006, 27 April, 20 August, 10, 11, 12 & 13 September 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr El-Hanania
Slattery Thompson Solicitors

THE RESPONDENT FATHER:

In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wearne
Legal Aid Commission NSW

Orders

All previous parenting orders are to be discharged.
The parents are to have equal shared parental responsibility for the child … born … March 2003 save that the child is to attend the school at which she has been enrolled by her mother to commence her primary schooling in 2008.
The child is to live with her mother.
Subject to order 5 hereof, the child is to spend time with her father as follows:

A. until the commencement of Term 1 in 2008:
(a)every second weekend from 3pm Friday until 3pm Sunday;
(b)from the conclusion of day care on the Thursday following the return on Sunday afternoon [if she attends day care on that day] or from 3pm, whichever applies, until the commencement of day care the following day [if she attends day care on that day] or at 10am, whichever applies;
(c)at other times agreed.

B. from the commencement of Term 1 in 2008 until the commencement of Term 4 in 2008
(i) during school terms:

(a)every second weekend from after school on Fridays until before school on Mondays, commencing on the first Friday of Term 1, Term 2 and Term 3;
(b)every second week from after school Thursday [following return on Monday] to before school Friday;
(c)at other times agreed.
(ii) during school holidays:

(d)during the first half of the holidays at the end of Term 1, Term 2 and Term 3.

C. from the commencement of Term 4 in 2008 and thereafter
(i) during school terms:

(a)every second weekend from after school Thursdays until before school Mondays, to commence on the first Thursday of the Term if she has been with her father during the first half of the school holidays and on the second Thursday of the term if she has been with her father during the second half of the school holidays;
(b)every second week from after school Thursday [following return on Monday] to before school Friday;
(c)at other times agreed.
(ii) during school holidays:

(d)during the first half in even numbered years and the second half in odd numbered years;

For the purpose of any changeover which does not occur at the child’s school:
(a)the mother or her agent is to deliver the child to the … Contact Service at … ([Contact Centre]) where the father or his agent is to…

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 Marte and Moulin

Details

AGLC: Marte and Moulin [2007] FamCA 1501
Case: [2007] FamCA 1501
Decision Date: 12 December 2007

CaseChat Overview and Summary

In Marte and Moulin, heard before Moore J, the dispute concerned parenting arrangements for a child born in March 2003. The court was required to determine the future parental responsibility, living arrangements, and time spent between the child and each parent, as well as address concerns regarding international travel.

The court was tasked with determining the extent of equal shared parental responsibility, the primary residence of the child, and a detailed schedule for the child's time with each parent, including provisions for school terms and holidays. Furthermore, the court needed to establish mechanisms for facilitated changeovers between parents, address the prohibition of extracurricular activities during the other parent's time, and implement measures to prevent the child's removal from Australia. This included orders for passport surrender, notification requirements for overseas travel, and restraints on obtaining new travel documents for the child.

Moore J discharged all previous parenting orders and made new orders establishing equal shared parental responsibility, with the child to live with her mother. A comprehensive schedule for the child's time with the father was set out, evolving from pre-school to post-primary school commencement. The court mandated the use of a contact service for changeovers, with costs shared equally, and ordered each parent to facilitate this process. To safeguard against international child abduction, the father was ordered to surrender his passport, and both parents were restrained from obtaining any passport or international travel document for the child. The court also requested the Australian Federal Police to place the child on the Airport Watch List and directed the Independent Children's Lawyer to serve the orders on relevant government departments and foreign embassies to ensure compliance.

The court ordered that all previous parenting orders be discharged. The parents were granted equal shared parental responsibility, with the child to live with her mother. A detailed schedule for the child's time with the father was established, and provisions were made for facilitated changeovers. The father was ordered to surrender his passport, and both parents were restrained from obtaining travel documents for the child, with measures implemented to prevent her removal from Australia. Finally, each parent was ordered to pay a contribution towards the costs of the Independent Children's Lawyer.

Orders

Orders of the court

All previous parenting orders are to be discharged.

The parents are to have equal shared parental responsibility for the child … born … March 2003 save that the child is to attend the school at which she has been enrolled by her mother to commence her primary schooling in 2008.

The child is to live with her mother.

Subject to order 5 hereof, the child is to spend time with her father as follows:

A. until the commencement of Term 1 in 2008:

(a) every second weekend from 3pm Friday until 3pm Sunday;

(b) from the conclusion of day care on the Thursday following the return on Sunday afternoon [if she attends day care on that day] or from 3pm, whichever applies, until the commencement of day care the following day [if she attends day care on that day] or at 10am, whichever applies;

B. from the commencement of Term 1 in 2008 until the commencement of Term 4 in 2008

(i) during school terms:

(a) every second weekend from after school on Fridays until before school on Mondays, commencing on the first Friday of Term 1, Term 2 and Term 3;

(b) every second week from after school Thursday [following return on Monday] to before school Friday;

(ii) during school holidays:

(d) during the first half of the holidays at the end of Term 1, Term 2 and Term 3.

C. from the commencement of Term 4 in 2008 and thereafter

(i) during school terms:

(a) every second weekend from after school Thursdays until before school Mondays, to commence on the first Thursday of the Term if she has been with her father during the first half of the school holidays and on the second Thursday of the term if she has been with her father during the second half of the school holidays;

(b) every second week from after school Thursday [following return on Monday] to before school Friday;

(ii) during school holidays:

(d) during the first half in even numbered years and the second half in odd numbered years;

For the purpose of any changeover which does not occur at the child’s school:

(a) the mother or her agent is to deliver the child to the … Contact Service at … ([Contact Centre]) where the father or his agent is to collect her at the commencement of the father’s time with her according to these orders or as agreed; and

(b) the father or his agent is to return the child to the Contact Centre where the mother or her agent is to collect her at the conclusion of the father’s time with her according to these orders or as agreed; and

(d) if for some reason the Contact Centre is not available or the required service is not provided then at another Contact Service or at an agreed venue.

To implement order 5

(a) within 14 days each parent is to do all things necessary and complete all intake procedures as required by the Contact Centre so as to enable the family to avail themselves of facilitated changeover at that service and notify the Independent Children’s Lawyer in writing when compliance is completed;

(b) if the Contact Centre is not available or does not provide the required service then each parent is to do all things necessary and complete all intake procedures necessary to take up an alternative service or as might be required at an agreed venue.

Neither parent is to arrange any extracurricular activities for the child to occur in the time the child is to spend with the other parent.

Each parent is to promptly advise the other of:

(i) any serious illness or injury suffered by the child while in the care of that parent;

(ii) any medical treatment, any medication prescribed for the child while in the care of that parent as well as the name of the treating doctor.

Until further order the father, born … April 1966 or … May 1966 and the mother born … March 1982 their servants and/or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child … born … March 2003 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

10.

Pursuant to section 67ZD of the Family Law Act 1975 the father is to surrender his passport to the Registrar of the Family Court of Australia, Sydney Registry pending further order.

11.

If the father intends to travel overseas:

(a) he is to provide written notice to the mother of his intention to travel (including proposed dates of departure and return), a copy of his itinerary and return tickets, no less than 28 days prior to the proposed date of departure;

(b) the mother is to provide written acknowledgement to the father within 7 days;

(c) the father is to provide a written request to the Registrar for the release of his passport, together with a copy of his written notice to the mother and any acknowledgement received from the mother;

(d) the Registrar is to release the father’s passport to the father within 72 hours of his proposed date of departure;

(e) Order 4 is suspended from 72 hours prior to the date of departure until the father provides the mother with a letter from the Court confirming he has returned his passport to the Court.

(f) Order 4 is to resume after compliance with Order 11(e) above.

12.

Until further or other order both parents are hereby restrained from applying for any passport or international travel document in the name of the child … born … March 2003, either solely or jointly with either of them.

13.

The Independent Children’s Lawyer is at liberty to serve a sealed copy of these orders on the Secretary of the Australian Department of Foreign Affairs and Trade (“the Department”) with a letter requesting the Secretary to take such steps as may be appropriate within the limits of the practice of the Department to ensure compliance with order 12 herein AND that in the event that any attempt is made by, or on behalf of, either party to obtain a passport or other travel document for the child or for her/himself and the child, that the Secretary immediately notify the Registrar of the Sydney Registry Family Court of Australia and the other party, of such attempt.

14.

The Independent Children’s Lawyer has leave to serve a sealed copy of these orders on the Embassy of Lebanon in Canberra and on each Consulate of Lebanon in Australia with a letter requesting the Ambassador and his staff at each Consulate and his or her staff to co-operate and not issue any passport or other travel document so as to enable the removal of the child from the Commonwealth of Australia AND that in the event that any attempt is made by, or on behalf of either party to obtain a passport or other travel document for the child or for her/himself and the child, that the Embassy and/or Consulate immediately notify the Registrar of the Sydney Registry of the Family Court of Australia and the other party, of such attempt.

15.

Within 21 days of final property orders being made, each party is to pay to the Legal Aid Commission of NSW the costs of the Independent Children’s Lawyer in the amount of $4,224.

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.