Mg and MJ and Anor - [2003] FMCAfam 457

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MG & MJ & ANOR

[2003] FMCAfam 457

FAMILY LAW – CHILDREN – residence – best interests of children – application by the grandmother – children aged 3 years and 8 months.

Family Law Act 1975, ss.60B, 65E, 68F(2)

Rice v Miller (1993) FLC 92-415
Re: Hodak; Newman; Hodak (1993) FLC 92-421
Stevens and Lee (1991) FLC 92-201
Bright and Bright v Bright and Mackley (1995) FLC 92-570
Archbold and Archbold (1984) FLC 91-532
McEnearney and McEnearney (1980) FLC 90-866

Applicant:

G M

First Respondent:

J M

Second Respondent:

M F

File No:

PAM 1793 of 2001

Delivered on:

30 September 2003

Delivered at:

Parramatta

Hearing dates:

14 & 15 August, 18 & 19 September 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

J.M Rushton & Co

The First Respondent appeared on his own behalf.

Solicitor for the Second Respondent:

Mr White

Solicitors for the Respondent:

Peter White & Associates

ORDERS

All earlier parenting orders are discharged.
The children T I F born 4 September 2000 and C F born 15 January 2003 are to live with the First Respondent father and the Second Respondent mother.
The Applicant grandmother is to have contact with the said children as follows:
(a)from 10.00 am to 5.00 pm each alternate Saturday, commencing on Saturday 11 October 2003, until the child C attains the age of two years; and
(b)thereafter, each alternate weekend from 10.00 am on the Saturday until 4.00 pm on the Sunday, extending to 4.00pm on the Monday if the Monday is a public holiday.
The parties are to have the responsibility for the day to day care welfare and development of the children at all times when the children are in their respective care.
Contact changeover is to take place at the Central West Contact Service at H P and the parties are to contact the said Contact Service to make all necessary arrangements for regular contact changeover within seven (7) days.
All documents produced on subpoena may be returned after the expiry of one (1) month from the date of these Orders.
The Application is removed from the Pending Cases List.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1793of 2001

G M

Applicant

And

J M

First Respondent

And

M F

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application by the grandmother of two children seeking orders that the children reside with her. The two children concerned are a little girl called T I F, born on 4 September 2000 and a boy called C D F, born on 9 January 2003. The children's father is the applicant's son who is the first respondent in these proceedings. The children's mother, the second respondent in these proceedings, is the first respondent's de facto partner. The first and second respondents live together.
The applicant filed an Amended Application on the 30^th July 2003 setting out the Orders which she seeks. These are:
a)the…

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.

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Details

Case: [2003] FMCAfam 457
Decision Date: 30 September 2003

CaseChat Overview and Summary

The case of Mg and MJ and Anor involved a dispute over the care and custody of two children, T I F and C F. The applicants in this case were the children's grandmother and grandfather, seeking to have the children placed in their care. The respondents were the children's father and mother, who were contesting the application. The matter was heard in the Family Court of Australia.

The primary legal issue before the court was whether it was in the best interests of the children to be placed in the care of their grandparents, as opposed to remaining with their parents. The court considered the welfare and development of the children, the wishes of the children themselves, and the ability of the parties to provide for the children's needs. The court also considered the importance of maintaining a stable and consistent environment for the children.

After considering the evidence presented and the relevant legal principles, the court determined that it was in the best interests of the children to remain with their parents. The court found that the children had a strong bond with their parents and that placing them in the care of their grandparents would be disruptive and potentially harmful to their welfare and development. The court also found that the parents were capable of providing for the children's needs and maintaining a stable and loving environment.

The court made several orders, including discharging all earlier parenting orders, granting custody of the children to the respondents, and setting out specific contact arrangements for the applicants. The court also ordered that the parties were responsible for the day-to-day care, welfare, and development of the children when they were in their care and that contact changeover was to take place at a designated contact service. The court further ordered that all documents produced on subpoena could be returned after one month from the date of the orders and that the application be removed from the pending cases list.

Orders

Orders of the court

All earlier parenting orders are discharged.

The children T I F born 4 September 2000 and C F born 15 January 2003 are to live with the First Respondent father and the Second Respondent mother.

The Applicant grandmother is to have contact with the said children as follows:

(a) from 10.00 am to 5.00 pm each alternate Saturday, commencing on Saturday 11 October 2003, until the child C attains the age of two years; and

(b) thereafter, each alternate weekend from 10.00 am on the Saturday until 4.00 pm on the Sunday, extending to 4.00pm on the Monday if the Monday is a public holiday.

The parties are to have the responsibility for the day to day care welfare and development of the children at all times when the children are in their respective care.

Contact changeover is to take place at the Central West Contact Service at H P and the parties are to contact the said Contact Service to make all necessary arrangements for regular contact changeover within seven (7) days.

All documents produced on subpoena may be returned after the expiry of one (1) month from the date of these Orders.

The Application is removed from the Pending Cases List.

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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