Moers & Sands - [2007] FMCAfam 1067

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOERS & SANDS

[2008] FMCAfam 1067

FAMILY LAW – Care arrangements for child aged 5 years – father employed in mining industry interstate on fly in fly out basis – child lives in Adelaide with mother – father seeks to spend each third week and half of school holidays with child – poor and mistrustful relationship between parties – extreme communication difficulties – allegations of family violence – presumption of equal shared parental responsibility – substantial and significant time – practical considerations – best interests.

Family Law Act 1975, ss.4, 60B, 60CC, 60CD, 61DA, 65DAA, 65DAC

Goode & Goode (2006) FLC 93-286
JG & BG 18 Fam LR 255
In the marriage of Patsalou (1994) 18 Fam LR 426
Bright and Bright (1995) FLC 92-570

Applicant:

MR MOERS

Respondent:

MS SANDS

File number:

ADC 2864 of 2007

Judgment of:

Brown FM

Hearing date:

3 December 2007

Date of last submission:

3 December 2007

Delivered at:

Adelaide

Delivered on:

12 December 2007

REPRESENTATION

Counsel for the Applicant:

Ms Hurley

Solicitors for the Applicant:

Clelands Lawyers

Counsel for the Respondent:

Mr Bowler

Solicitors for the Respondent:

Di Morosini & Co

ORDERS

The parties have equal shared parental responsibility for the child of their relationship Z born in January 2002 (herein referred to as “the child”).
The child live with the mother.
The father spend time with the child when he (the father) is in Adelaide as follows:
(i)During school terms in every third week from after school on Monday to the commencement of school the following Monday;
(ii)During each short term school holiday from 6:00pm on the first Sunday of such holiday to 6:00pm the following Sunday;
(iii)For a continuous period of three weeks in the Christmas school holiday period of each year commencing at 11:00am on 26 December each year and concluding at 11:00am on 16 January in the following year (the child’s birthday);
(iv)For Christmas 2007 and each odd ending year thereafter from 5:00pm Christmas Eve until 11:00am on Christmas Day;
(v)For Christmas 2008 and each even ending year thereafter from 11:00am on Christmas Day until 11:00am on Boxing Day.;
(vi)For Father’s Day in each year, if Father’s Day does not fall on a weekend the father would otherwise spend with the child, from 9:00am to 6:00pm on Father’s Day provided the father gives the mother notice he will be in Adelaide for Father’s Day;
(vii)For Easter 2008 and each even ending year thereafter from Thursday at 4:00pm until Easter Monday at 6:00pm.
The parties exchange the child between them as required by these orders at the child’s school and the father’s mother Ms M is authorised to act as the father’s agent in regards to collecting and returning the child for any period pursuant to these orders.
In the event the child cannot be exchanged between the parties as required by these orders at his school the father or his agent Ms M is to collect the child from the mother’s home…

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 Moers & Sands

Details

AGLC: Moers & Sands [2007] FMCAfam 1067
Case: [2007] FMCAfam 1067
Decision Date: 12 December 2007

CaseChat Overview and Summary

The case of Moers & Sands was heard in a family court in Australia. The parties involved were Moers and Sands, who were in a relationship and had a child, Z, born in January 2002. The dispute centred on the arrangements for the care and parenting of the child. The court was required to decide on the allocation of parental responsibilities and the specifics of the time-sharing arrangements between the parents.

The legal issues before the court included determining the allocation of parental responsibilities, the specific time-sharing arrangements between the parents, and the conditions under which the child would live with each parent. The court had to consider the best interests of the child in making these decisions. The court was also required to address the need for communication between the parents and the child, and the maintenance of a stable and supportive environment for the child.

The court decided that the parties would have equal shared parental responsibility for the child. The child would live with the mother, but the father would have specific periods during which he would spend time with the child. These periods were detailed in the orders, including specific times during school terms, school holidays, and special occasions like Christmas and Easter. The court also outlined the conditions for the exchange of the child between the parents and authorised the father’s mother to act as his agent in this process. Communication between the parents regarding the child’s care was to be maintained through a communication book, and both parents were to keep each other informed of any changes to their contact details or residential addresses.

The court made several orders to ensure the smooth transition of the child between the parents and to maintain a stable and supportive environment. These included provisions for communication between the father and child during the week, restrictions on denigrating the other parent in the presence of the child, and the requirement for each parent to inform the other of any major illness or accident suffered by the child. Additionally, the court restrained the parents from changing the child’s school without the written consent of the other and allowed them to attend school events as needed.

Orders

Orders of the court

The parties have equal shared parental responsibility for the child of their relationship Z born in January 2002 (herein referred to as “the child”).

The child live with the mother.

The father spend time with the child when he (the father) is in Adelaide as follows:

(i) During school terms in every third week from after school on Monday to the commencement of school the following Monday;

(ii) During each short term school holiday from 6:00pm on the first Sunday of such holiday to 6:00pm the following Sunday;

(iii) For a continuous period of three weeks in the Christmas school holiday period of each year commencing at 11:00am on 26 December each year and concluding at 11:00am on 16 January in the following year (the child’s birthday);

(iv) For Christmas 2007 and each odd ending year thereafter from 5:00pm Christmas Eve until 11:00am on Christmas Day;

(v) For Christmas 2008 and each even ending year thereafter from 11:00am on Christmas Day until 11:00am on Boxing Day.;

(vi) For Father’s Day in each year, if Father’s Day does not fall on a weekend the father would otherwise spend with the child, from 9:00am to 6:00pm on Father’s Day provided the father gives the mother notice he will be in Adelaide for Father’s Day;

(vii) For Easter 2008 and each even ending year thereafter from Thursday at 4:00pm until Easter Monday at 6:00pm.

The parties exchange the child between them as required by these orders at the child’s school and the father’s mother Ms M is authorised to act as the father’s agent in regards to collecting and returning the child for any period pursuant to these orders.

In the event the child cannot be exchanged between the parties as required by these orders at his school the father or his agent Ms M is to collect the child from the mother’s home at the beginning of such period and the mother is to collect the child from the father’s home at the conclusion of the period.

The parties exchange all information in writing relevant to the child’s care by means of communication book which is exchanged between them at the beginning and end of each period the child spends with the father.

In the event that Mother’s Day falls on a weekend during which the child is in the father’s care the father shall return the child to the mother at 9:00am on Mother’s Day and the father’s time with the child will conclude for that period at that time only.

The father provide the mother with a copy of his work roster three months in advance and advise her in writing if there is any change to the two weeks on, one week off roster within 48 hours of becoming advised of such a change.

The parties keep each other informed of the residential addresses at which the child will be residing with each of them and provide details of how they may be contacted by the other electronically or by telephone in case of emergency pertaining to the child including any delay in the father’s travel arrangements which is likely to impact on the child.

10.

During the week Z is not spending time with the father the father communicate with the child by telephone each Monday, Wednesday and Friday between the hours of 7:00pm and 7:30pm Australian Central time with the child to telephone the father on each Monday and Friday and the father to telephone the child on each Wednesday on the mother’s mobile phone.

11.

Each of the parties be restrained and an injunction issue restraining each of them from denigrating the other in the presence or hearing of the child or discussing the proceedings with the child.

12.

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

13.

The parties be at liberty to attend or visit the school attended by the child from time to time for events, activities or functions routinely attended by parents, including parent/teacher interviews, sports day, and other school events.

14.

Each party be restrained and an injunction issue restraining each of them from changing the school currently attended by the child without the written consent of the other.

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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