Molloy & McAdam - [2008] FMCAfam 739

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOLLOY & MCADAM

[2008] FMCAfam 739

FAMILY LAW – Parenting – admissibility of recorded telephone conversations between father and mother – mother’s relocation to Brisbane – mother’s interim proposal separates children.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA & 65DAC
Evidence Act 1995 ss.128 & 138
Telecommunications (Interception and Access) Act 1979 ss.5, 6, 7, 77 & 105
Listening Surveillance and Devices Act 1972 (SA)

Goode & Goode [2006] FamCA 1346
R and R: Children’s Wishes (2000) FLC 93-000
Byrne & Byrne (2003) FLC93-125
Morgan –v- Miles (2007) FamCA 1230

Applicant:

MR MOLLOY

Respondent:

MS MCADAM

File Number:

ADC 788 of 2007

Judgment of:

Kemp FM

Hearing date:

11 July 2008

Date of Last Submission:

11 July 2008

Delivered at:

Adelaide

Delivered on:

11 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr Britton

Solicitors for the Applicant:

BC O’Leary & Associates

Counsel for the Respondent:

Mr Bowler

Solicitors for the Respondent:

Norman Waterhouse

THE COURT ORDERS

The respondent, Ms McAdam be granted a certificate under s.128 of the Evidence Act 1995 regarding her affidavit evidence read in these proceedings on 11 July 2008.

ORDERS PENDING FURTHER ORDERS

By consent, [B] [B]born in 1998 live with the father in Adelaide.
By consent, each party is restrained and an injunction is granted restraining them from denigrating the other party in the presence of the children or allowing any other person to do so.
[C] [C]born in 2002 live with the father in Adelaide.
The respondent mother spend time with [B] and [C] as follows:
(a)Telephone and internet communication time as agreed by the parties or failing agreement, on at least 4 occasions per week on Monday, Wednesday, Friday and Sunday between the hours of 5pm and 7.30pm.
(b)During the South Australian October school holidays in Brisbane from the second Saturday of the school holidays until the last Sunday with the father to pay the costs of air travel for the children between Adelaide and Brisbane.
(c)The first half of the South Australian Christmas school holidays in Brisbane with the costs of air travel for the children to be shared equally between the parties.
(d)Such further or other time as the parties may agree for time in Brisbane, provided that the costs of any airfare travel for the children between Adelaide and Brisbane are met by the mother.
(e)If the mother returns to live in Adelaide, such further or other time as the parties may agree or failing agreement, the mother is to have liberty to restore the matter on three days notice to seek such further or other time orders as the Court considers then appropriate.
This matter be listed for trial before Federal Magistrate Lindsay on

3 & 4 November 2008 at 10.00am (NOTING 2 days allowed).
The parties file and serve affidavits of all evidence upon which they intend to rely at trial by not later than 28 days prior to the trial date.
The applicant pay the hearing fee…

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 Molloy & McAdam

Details

AGLC: Molloy & McAdam [2008] FMCAfam 739
Case: [2008] FMCAfam 739
Decision Date: 11 July 2008

CaseChat Overview and Summary

The case of Molloy & McAdam before the Federal Magistrates Court of Australia involves a dispute between the parents, Mr Molloy and Ms McAdam, over the custody and parenting arrangements for their two children, [B] born in 1998 and [C] born in 2002. The mother had moved to Brisbane, which led to the father seeking certain interim parenting orders. In response, the mother sought her own set of interim parenting orders. The court had to decide on the admissibility of recorded telephone conversations between the parents, the relocation of the mother to Brisbane, and the best interests of the children. The court ruled that the transcripts of the recorded conversations were admissible and found that the mother's relocation to Brisbane did not significantly impact the children's best interests. The court emphasised the importance of the children maintaining a relationship with both parents and weighed various factors to determine the best interests of the children. The court ordered that [C] should live with [B] in Adelaide and granted the children visitation rights with the mother in Brisbane during school holidays. The case highlights the court's consideration of various factors in determining the best interests of the children in parenting disputes.

Orders