MG & JGG - [2004] FMCAfam 300

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MG & JGG

[2004] FMCAfam 300

FAMILY LAW – Children – interim residence – exclusive occupation – injunction.

Family Law Act 1975

Scholte (2002) FamCA 59
Davis v Davis (1976) FLC 90-062
Page v Page (1981) FLC 91-025
Sieling v Sieling (1979) FLC 90-627
Bassett v Bassett (1975) 1 All ER 513
Davis v Davis (1983) FLC 91-319
Cowling v Cowling (1998) FLC 92-801
K v K (2003) FMCAfam 214

Applicant:

M G

Respondent:

J G G

File No:

PAM1649 of 2004

Delivered on:

24 May 2004

Delivered at:

Parramatta

Hearing date:

24 May 2004

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr P. Sansom

Solicitors for the Applicant:

Smythe & Mallam

Solicitor Advocate for the Respondent:

Ms C Grew

Solicitors for the Respondent:

Harman & Co.

ORDERS

Pending further order:

That “the children” Luke born in 1992 and Jake born in 1995 live with the applicant wife.
That the children have contact with the respondent husband as follows:
(a)From after school Friday until start of school Monday each alternate week.
(b)Each week from after school Wednesday to the start of school Thursday.
(c)For the first half of all short school holidays with the exception of the 2004 school holidays.
(d)In the June/July 2004 School holidays from the day after the children return from Fiji until 5.00 pm on the day before school resumes.
(e)For the first half of the December/January school holidays in 2004/05
(f)Of the weekend that includes Father’s Day.
(g)For three hours on each child’s birthday.
(h)By telephone at all reasonable times.
(i)In the event that a contact weekend falls adjacent to a public holiday contact is extended to include the public holiday.
(j)At such other times as the parties agree.
Within four (4) weeks the respondent husband shall vacate the former matrimonial home at Penrith and the applicant wife shall thereafter have exclusive occupation of the said property.
Upon vacating the former matrimonial home the respondent husband may remove his personal belongings and a selection of the household goods and furniture agreed between the parties.
That the parties shall make arrangements to attend confidential counselling with an agreed agency which counselling shall include the children if the counsellor deems it appropriate.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
The applicant files and serves an amended application with 14 days.
The respondent files and serves an amended response within a further 21 days.
The matter is listed for mention before me at 10.00 am on 2 July 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1649 of 2004

M G

Applicant

And

J G G

Respondent

REASONS FOR JUDGMENT

The application

These reasons were delivered orally.
This is an application by M G (“the applicant”) filed 26 March 2004…

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 MG & JGG

Details

AGLC: MG & JGG [2004] FMCAfam 300
Case: [2004] FMCAfam 300
Decision Date: 24 May 2004

CaseChat Overview and Summary

In the Family Court of Australia, the case of MG & JGG involved the determination of parenting arrangements and property settlement following the separation of the parties. The applicants, a married couple, sought orders concerning the residence and contact arrangements for their two children, Luke and Jake, as well as the division of property between them.

The legal issues before the court included the best interests of the children in determining their residence and contact with each parent, as well as the equitable division of the matrimonial property. The court had to consider the welfare of the children, the parents' ability to provide for their needs, and the financial circumstances of the parties in making its decisions.

The court found that it was in the best interests of the children for them to live primarily with the applicant wife, while allowing the respondent husband specific contact times as outlined in the orders. The court also addressed the division of the former matrimonial home and other property, allowing the husband to remove certain personal and household items. Additionally, the court mandated that both parties attend counselling, which may include the children, to assist with the transition and to address any underlying issues.

The court's final orders included specific arrangements for the children's residence and contact with both parents, property division, and mandatory counselling. The case was listed for further mention to ensure ongoing compliance and adjustment of the orders as necessary.

Orders

Orders of the court

Pending further order:

That “the children” Luke born in 1992 and Jake born in 1995 live with the applicant wife.

That the children have contact with the respondent husband as follows:

(a) From after school Friday until start of school Monday each alternate week.

(b) Each week from after school Wednesday to the start of school Thursday.

(d) In the June/July 2004 School holidays from the day after the children return from Fiji until 5.00 pm on the day before school resumes.

(e) For the first half of the December/January school holidays in 2004/05

(f) Of the weekend that includes Father’s Day.

(g) For three hours on each child’s birthday.

(h) By telephone at all reasonable times.

(i) In the event that a contact weekend falls adjacent to a public holiday contact is extended to include the public holiday.

(j) At such other times as the parties agree.

Within four (4) weeks the respondent husband shall vacate the former matrimonial home at Penrith and the applicant wife shall thereafter have exclusive occupation of the said property.

Upon vacating the former matrimonial home the respondent husband may remove his personal belongings and a selection of the household goods and furniture agreed between the parties.

That the parties shall make arrangements to attend confidential counselling with an agreed agency which counselling shall include the children if the counsellor deems it appropriate.

Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

The applicant files and serves an amended application with 14 days.

The respondent files and serves an amended response within a further 21 days.

The matter is listed for mention before me at 10.00 am on 2 July 2004.

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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