MASON & MASON - [2013] FMCAfam 99

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MASON & MASON

[2013] FMCAfam 99

FAMILY LAW – Children – parenting orders – final orders – best interests of the child – parental responsibility – equal shared parental responsibility.

FAMILY LAW – Children – passport – child’s passport – delivery of passport – whether order should be made for delivery of child’s passport to be delivered up to the Court.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 63B, 65DAA, 65Y, 67ZD
Federal Magistrates Court Rules 2001 r.17.02

John & Dane [2007] FMCAfam 93
Klein & Wright [2007] FMCAfam 360

Applicant:

MS MASON

Respondent:

MR MASON

File Number:

SYC 373 of 2011

Judgment of:

Scarlett FM

Hearing dates:

5 and 6 February 2013

Date of Last Submission:

6 February 2013

Delivered at:

Sydney

Delivered on:

8 February 2013

REPRESENTATION

Counsel for the Applicant:

Mr Christoff

Solicitors for the Applicant:

M.J. Woods & Co

Respondent:

The Respondent appeared in person

ORDERS

All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child of the marriage [X] born [in] 2000.
The child [X] is to live with the Mother.
The child [X] is to spend time with the Father:
(a)From 9:00am to 4:00pm each alternate Sunday PROVIDED THAT if the Mother becomes aware that the child will be unable to spend time with the Father on the Sunday of that weekend then the Mother is to arrange for the child to spend time with the Father from 9:00am to 4:00pm on the Saturday instead;
(b)From 9:00am to 2:00pm each Christmas Day;
(c)From 3:00pm to 8:00pm on the child’s birthday or at such other time on that day as the Mother and Father shall agree;
(d)From 3:00pm to 8:00pm on the Father’s birthday being [date omitted] in each year;
(e)From 9:00am to 4:00pm on Father’s Day in each year: and
(f)On such other days as the parties shall agree, including the birthday of the child’s paternal grandfather MR M.
For the purposes of Order (4) above the Father is to collect [X] from the shop premises known as [omitted] in [address omitted] or such other place as the parties agree at the commencement of the child’s time with the Father and return the child to the Mother at the same place or such other place as the parties shall agree at the conclusion of the child’s time with the Father.
Each parent is to enjoy liberal and flexible telephone communication with [X] during periods when the child is in the care of the other parent and each party is to provide to the other party details of their respective telephone contact numbers and emergency contact numbers for this purpose.
The Father is restrained by injunction from consuming any alcoholic drink or administering to himself any prohibited drug at any time when the child [X] is in his care according to these orders or for a period of twelve (12) hours beforehand.
In the event that…

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 MASON & MASON

Details

AGLC: MASON & MASON [2013] FMCAfam 99
Case: [2013] FMCAfam 99
Decision Date: 8 February 2013

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Mason & Mason was heard and determined. The primary dispute between the parties involved the care, custody, and parenting arrangements for their child, [X]. The court was required to make decisions regarding the child’s living arrangements, contact schedules, and broader parenting issues such as interstate and overseas travel.

The court faced several key legal issues, including determining the best interests of the child in terms of living arrangements and contact schedules, the allocation of parental responsibility, and the specific terms of interstate and overseas travel. The court had to balance the rights and responsibilities of both parents while ensuring the child's welfare was paramount. The court considered the principles set out in the Family Law Act, including the requirement to make orders that reflect the principle of equal shared parental responsibility where appropriate, and to ensure that the child’s best interests are met.

The court found that equal shared parental responsibility was in the best interests of the child. The child was to live primarily with the mother, but the father was to have extensive and specific contact arrangements. These included regular weekend visits, special occasions, and certain holidays. The court also addressed the issue of travel, stipulating detailed requirements for both interstate and overseas travel, including notice periods and the need for consent from the non-travelling parent. The court emphasised the importance of communication between parents and the need to avoid exposing the child to potential harm, such as by prohibiting alcohol consumption and drug use when the child is in the father’s care. Additionally, the court mandated that both parents must provide updated contact information and refrain from speaking negatively about each other in front of the child.

The final orders of the court discharged all previous parenting orders and established new arrangements for parental responsibility, contact, and travel, ensuring that both parents had a significant role in the child's life while prioritising the child's best interests and welfare.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child of the marriage [X] born [in] 2000.

The child [X] is to live with the Mother.

The child [X] is to spend time with the Father:

(a) From 9:00am to 4:00pm each alternate Sunday PROVIDED THAT if the Mother becomes aware that the child will be unable to spend time with the Father on the Sunday of that weekend then the Mother is to arrange for the child to spend time with the Father from 9:00am to 4:00pm on the Saturday instead;

(b) From 9:00am to 2:00pm each Christmas Day;

(c) From 3:00pm to 8:00pm on the child’s birthday or at such other time on that day as the Mother and Father shall agree;

(d) From 3:00pm to 8:00pm on the Father’s birthday being [date omitted] in each year;

(e) From 9:00am to 4:00pm on Father’s Day in each year: and

(f) On such other days as the parties shall agree, including the birthday of the child’s paternal grandfather MR M.

For the purposes of Order (4) above the Father is to collect [X] from the shop premises known as [omitted] in [address omitted] or such other place as the parties agree at the commencement of the child’s time with the Father and return the child to the Mother at the same place or such other place as the parties shall agree at the conclusion of the child’s time with the Father.

Each parent is to enjoy liberal and flexible telephone communication with [X] during periods when the child is in the care of the other parent and each party is to provide to the other party details of their respective telephone contact numbers and emergency contact numbers for this purpose.

The Father is restrained by injunction from consuming any alcoholic drink or administering to himself any prohibited drug at any time when the child [X] is in his care according to these orders or for a period of twelve (12) hours beforehand.

In the event that [X] becomes ill or injured and requires medical attention the party who has the care of the child on such occasion must notify the other party and provide the other party with details of the child’s treating doctor or hospital as soon as practicable.

The parties are restrained from criticising or denigrating the other party in the presence or hearing of the child [X].

INTERSTATE TRAVEL

10.

In the event that either party wishes to travel out of the State of New South Wales with [X] the party wishing to travel with the child must:

(a) Notify the other party in writing not less than three (3) weeks prior to the proposed departure date; and

(b) Forward to the other party not less than fourteen (14) days prior to the proposed departure date a copy of the proposed itinerary and return date and contact telephone numbers and addresses at which the child may be contacted for the duration of the time that the child remains out of the State of New South Wales.

11.

The party wishing to travel out of the State of New South Wales with the child [X] must ensure that the dates of proposed travel do not fall either wholly or partly within school term time unless the other party consents in writing.

OVERSEAS TRAVEL

12.

In the event that either party wishes to travel out of Australia with [X] the party wishing to travel with the child must:

(a) Notify the other party in writing not less than eight (8) weeks prior to the proposed departure date; and

(b) Forward to the other party not less than four (4) weeks prior to the proposed departure date a copy of the proposed itinerary including flight numbers and times and the proposed return date together with contact telephone numbers and addresses at which the child may be contacted for the duration of the time that the child remains out of Australia.

13.

The party wishing to travel out of Australia with the child [X] must ensure that the dates of proposed travel do not fall either wholly or partly within school term time unless the other party consents in writing.

14.

In the event that either party wishes to travel out of Australia with the child [X] and that party has complied with Order (13) above then the other party must do all things and sign all documents and consents as may be necessary to enable the child to travel out of Australia with that party.

15.

The parties must keep each other informed of their current landline and mobile telephone numbers and notify each other of any change to their telephone numbers within twenty-four (24) 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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