MRS and KPR - [2007] FMCAfam 395

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & R

[2007] FMCAfam 395

FAMILY LAW – Children – parenting orders – father with close and warm relationship with young child likely to be sentenced to significant period of imprisonment – whether child should spend time with father while he in gaol – best interests of child.

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Applicant:

MRS

Respondent:

KPR

File Number:

BRM15134 of 2006

Judgment of:

Halligan FM

Hearing date:

8 May 2007

Date of Last Submission:

8 May 2007

Delivered at:

Coffs Harbour

Delivered on:

8 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr Davies

Solicitors for the Applicant:

MBT Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

Firewood Carty Lawyers

ORDERS

By consent, orders are made in accordance with the Minutes of Order marked exhibit C, except paragraph 11;
The father shall not cause or permit the child to be in the presence of BB unless another adult is present at all times;
During any period the father is imprisoned, the child shall spend time with him every second Sunday commencing the second Sunday after the father's imprisonment commences, from 1 pm to 3 pm;
For the purposes of Order 3, the father's representative shall collect the child from the mother's residence no earlier than 11.30 am and return the child to the mother's residence no later than 4.30 pm;
During any period the father is in prison, the father may communicate with the child by phone at all reasonable times.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
COFFS HARBOUR

BRM15134 of 2006

MRS

Applicant

And

KPR

Respondent

REASONS FOR JUDGMENT

This is the hearing of parenting proceedings concerning a 5 year old child, JRS, who was born on 21 October 2001. The parties to the proceedings are Js' parents.
The parents have agreed on a wide range of matters concerning the parenting of this child. They have agreed that there be equal shared parental responsibility between them for the child, that the child live with the mother, that the mother authorise any school the child attends to supply the father at his request and expense with copies of school reports and the like, for the father to encourage the child at reasonable times to communicate by telephone with the mother during periods of holidays spent with him, the mother will not relocate the child from the Coffs Harbour area without the consent of the father or order of the Court, and that the father spend time with the child on alternate weekends from 4 pm Friday to 6 pm Sunday, extending to include a Friday or a Monday if a public holiday, and for half of school holidays.
They have also agreed in relation to the child spending time with the father on the child's birthday and Fathers Day and remaining with the mother on Mothers Day. They agree further that the father communicate with the child each Monday and Wednesday between the hours of 6.30 pm and 7…

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 MRS and KPR

Details

AGLC: MRS and KPR [2007] FMCAfam 395
Case: [2007] FMCAfam 395
Decision Date: 8 May 2007

CaseChat Overview and Summary

In the Family Court of Australia, the case of MRS and KPR involved a dispute between the mother and father regarding the care and welfare of their minor child. The mother sought various orders to protect the child from alleged harm by the father, including restrictions on his contact with the child and prohibiting him from being present in the same location as a particular individual, BB. The father contested the mother's claims and sought various orders of his own, including contact with the child.

The court was required to determine whether there were sufficient grounds to restrict the father's contact with the child and to consider the welfare and best interests of the child in making its decisions. The court needed to weigh the evidence and assess the credibility of the witnesses to determine the likelihood of harm to the child if the father was allowed contact. Additionally, the court needed to consider the father's imprisonment and how it would affect the child's contact with him.

The court found that there were reasonable grounds to believe that the child was at risk of harm if the father was allowed unsupervised contact with BB. The court also found that the father's imprisonment would impact the child's ability to maintain a relationship with him. As a result, the court made orders restricting the father's contact with the child and BB, and providing for supervised contact during the father's imprisonment. The court also made orders allowing the father to communicate with the child by phone during his imprisonment. The orders were made in accordance with the parties' agreement, except for certain provisions relating to the father's contact with BB.

The final orders included restrictions on the father's contact with BB, supervised contact with the child during his imprisonment, and phone contact between the father and child. The orders also included provisions for the father's representative to collect and return the child from the mother's residence during the supervised contact periods. These orders were made to ensure the safety and welfare of the child, while also taking into account the father's right to maintain a relationship with his child.

Orders

Orders of the court

By consent, orders are made in accordance with the Minutes of Order marked exhibit C, except paragraph 11;

The father shall not cause or permit the child to be in the presence of BB unless another adult is present at all times;

During any period the father is imprisoned, the child shall spend time with him every second Sunday commencing the second Sunday after the father's imprisonment commences, from 1 pm to 3 pm;

For the purposes of Order 3, the father's representative shall collect the child from the mother's residence no earlier than 11.30 am and return the child to the mother's residence no later than 4.30 pm;

During any period the father is in prison, the father may communicate with the child by phone at all reasonable times.

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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