McD and McD - [2005] FMCAfam 34

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McD & McD

[2005] FMCAfam 34

FAMILY LAW – Children – planned relocation of mother from D to B of children aged 4 & 3 – assessment of parties’ competing applications – father seeks to restrain mother in D and implement shared care regime – consideration of alternative outcomes to the primary proposals of the parties.

Family Law Act 1975, ss.60B; 65E and 68F

B and B: Family Law Reform Act (1997) FLC 92-755
AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A: Relocation Approach (2000) FLC 93-035
Fragomeli & Fragomeli (1993) FLC 92-393
U & U [2002] FLC 93-112
D & SV (2003) FLC 93-137
Craven v Craven (1976) FLC 90-049
T & N [2001] FMCAfam 222

Applicant:

S C McD

Respondent:

C McD

File No:

DNM 165 of 2004

Delivered on:

7 February 2005

Delivered at:

Darwin

Hearing dates:

13, 14 & 28 January 2005

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Ms T

Solicitors for the Applicant:

Counsel for the Respondent:

Ms B

Solicitors for the Respondent:

C B

ORDERS

That the children of the marriage M J McD born 15 March 2000 and
R J McD born 4 June 2001 live with the mother in B.
That the parties retain joint responsibility for making decisions concerning the long term care, welfare and development of the said children.
That each of the parties have responsibility for making decisions concerning the day to day care, welfare and development of the said children when they are in his or her respective care.
That, in the event that the father is not living in same location as the children, the father have contact to the children in the location where he resides or at such other location as the parties may agree from time to time as follows:
(a)For the whole of the March/April Q school holidays in 2005 and each year thereafter;
(b)For the whole of the mid year (June/July) Q school holidays in 2005 and each year thereafter;
(c)For the whole of the September Q school holidays in 2005 and each alternate year thereafter;
(d)For 4 continuous weeks of the Q December/January school holiday in each year so that such 4 week period includes Christmas Day in 2005 and each alternate year thereafter but does not include Christmas Day in 2006 and each alternate year thereafter;
(e)On up to three weekends each school term in B on the father giving the mother 14 days written notice of his intention to exercise contact in this regard;
(f)At any other time and on other conditions as may be agreed between the parties from time to time;
(g)By telephone at times to be agreed between the parties but on no less than two occasions each week and failing agreement between 6.00 pm and 7.00 pm Q time on each Wednesday and Sunday.
That in the event that the said children are not otherwise with the father on Christmas Day…

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 McD and McD

Details

AGLC: McD and McD [2005] FMCAfam 34
Case: [2005] FMCAfam 34
Decision Date: 7 February 2005

CaseChat Overview and Summary

In the matter of McD and McD, the Family Court of Australia was tasked with determining the living arrangements and contact schedules for the children of the marriage, M J McD and R J McD. The parents, McD and McD, had separated and were unable to reach an agreement regarding the residence and contact arrangements for their children. The primary concern was to determine the best living arrangements for the children while ensuring that both parents retained significant involvement in their day-to-day and long-term care.

The legal issues before the court included the allocation of residence, the establishment of a detailed contact schedule for the non-resident parent, and the division of responsibilities concerning the children's education, healthcare, and general welfare. The court needed to balance the welfare and best interests of the children against the rights and needs of both parents, ensuring that the children maintained meaningful relationships with both parents.

The court considered the evidence presented by both parties, including the children's needs, the parents' capabilities, and the impact of the proposed arrangements on the children. It was noted that the children had a close relationship with both parents and that joint decision-making was in their best interests. The detailed contact schedule was designed to allow the non-resident parent, the father, to maintain a significant role in the children's lives while ensuring that the children primarily reside with their mother. The court emphasised the importance of both parents providing stability and support to the children, and it mandated specific measures to facilitate communication and cooperation between the parents.

The court ordered that the children live primarily with their mother, with specific and detailed contact arrangements for the father, including holiday periods, weekend visits, and regular telephone contact. Both parents were required to share the costs of travel for the children to maintain contact and to provide each other with necessary contact and health information. The orders also included provisions to prevent any form of parental disparagement in the presence of the children and to ensure that both parents remain informed and involved in the children's lives.

Orders

Orders of the court

That the children of the marriage M J McD born 15 March 2000 and

R J McD born 4 June 2001 live with the mother in B.

That the parties retain joint responsibility for making decisions concerning the long term care, welfare and development of the said children.

That each of the parties have responsibility for making decisions concerning the day to day care, welfare and development of the said children when they are in his or her respective care.

That, in the event that the father is not living in same location as the children, the father have contact to the children in the location where he resides or at such other location as the parties may agree from time to time as follows:

(a) For the whole of the March/April Q school holidays in 2005 and each year thereafter;

(b) For the whole of the mid year (June/July) Q school holidays in 2005 and each year thereafter;

(d) For 4 continuous weeks of the Q December/January school holiday in each year so that such 4 week period includes Christmas Day in 2005 and each alternate year thereafter but does not include Christmas Day in 2006 and each alternate year thereafter;

(e) On up to three weekends each school term in B on the father giving the mother 14 days written notice of his intention to exercise contact in this regard;

(f) At any other time and on other conditions as may be agreed between the parties from time to time;

(g) By telephone at times to be agreed between the parties but on no less than two occasions each week and failing agreement between 6.00 pm and 7.00 pm Q time on each Wednesday and Sunday.

That in the event that the said children are not otherwise with the father on Christmas Day in any year and in the event that the father is in the same location as the children the father have contact with the children from 5.00 pm Christmas Day until 5.00 pm the following Boxing Day.

That, in the event the father is living permanently in B, the father have contact to the children as follows:

(a) For half of all Q School holidays;

(b) During school terms on alternate weekends from after school on Friday until the commencement of school the following Monday or Tuesday in the event that Monday is a public holiday;

(c) During school terms on one overnight occasion to be agreed between the parties and failing agreement from after school on Tuesday until the commencement of school the following Wednesday;

(d) At other times as may be agreed between the parties from time to time.

That the father and mother share the costs equally of the air travel for the children to undertake the contact as set out in Orders 4(a) to 4(d) hereof with the father to pay for the children’s airfare from B to D (or such other location within Australia at which the father may be residing) and the mother to pay for the children’s return airfare from D (or such other location within Australia at which the father may be residing) to B at the conclusion of each contact period.

In the event that the mother deems it necessary for the children to be accompanied for any of the contact as set out in Orders 4(a) to 4(d) hereof she shall be responsible for paying all the necessary cost for the children to be so accompanied.

That the parties each endeavour to obtain the cheapest available economy airfares for the purposes of facilitating the contact as set out in orders 4(a) to 4(d) hereof and advise the other of those arrangement in writing, including details of flight arrival and departures times and flight numbers 14 days prior to the date of travel.

10.

That the mother authorise the principal of each school attended by the children from time to time to send to the father:

(a) A photocopy of each school report concerning each child;

(b) An order form for each school photograph of each child.

11.

That the father be at liberty to attend to visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.

12.

That the parties provide to the other at all times their respective residential and postal addresses and their electronic contact details including contact telephone numbers, both mobile, home landline and work landline and email addresses and inform the other of any changes of these details within two days of such change.

13.

That if either party intends to travel away from their usual place of residence with the children during any period of holiday contact they provide the other with an itinerary providing details of departure and return and the address and telephone number of the place where the children will be staying during such holiday.

14.

That while the children are with the father the mother have contact with the children by telephone each Wednesday and Sunday between 6.00 pm and 7.00 pm by reference to the time at the location where the children are at the time.

15.

That neither party denigrate the other or permit any other person to denigrate the other party either in the presence or hearing of the children herein.

16.

That the father and mother each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as practical of each treating doctor or like professional attended by the child.

17.

That the mother keep the father informed of the names and addresses of all medical practitioners and other therapists (including psychologists, speech pathologists, physiotherapists and other allied health professionals) attended by the child R from time to time in respect of his special needs and provide him with details of all treatment and therapies received by the said child from such persons and the father be at liberty to attend upon all such medical practitioners and therapists to inquire as to the details of the treatment received by the child and as to the child’s progress and prognosis.

18.

All exhibits tendered in these proceedings shall be returned at the expiration of one calendar month from the date of these orders unless an appeal is lodged.

19.

The solicitor who issued any subpoena is to collect the subpoenaed material and return it to its owner within seven days of the date of these orders.

20.

All outstanding applications are dismissed.

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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