O and O - [2001] FMCAfam 127

FEDERAL MAGISTRATES COURT OF AUSTRALIA

O & O [2001] FMCA 127

FAMILY LAW – Children – Residence – Best interests of child – Respondent fails to attend hearing – Final orders made on undefended basis

Applicant:

Y Z O

Respondent:

Z O

File No:

ZP1239 of 2001

Delivered on:

9 August 2001

Delivered at:

Parramatta

Hearing Date:

9 August 2001

Judgment of:

Ryan FM

REPRESENTATION

Applicant in person

Mr Y Z O, Unit 18, 6–10 Railway Parade, Westmead NSW 2145

Respondent:

No appearance

ORDERS

That all existing parenting orders are discharged.
That the child M E O born 31 January 1994 (“the child”) live with the Applicant Father.
That the Father and Mother have joint responsibility for making decisions about the long term care, welfare and development of the child.
That the Father have responsibility for making decisions about the day to day care, welfare and development of the child.
That the Mother have contact to the child defined, but not limited to:
1.Each alternate weekend from 6.00pm Friday until 5.00pm Sunday commencing the second weekend after the Mother returns to Australia.
2.For the first half of each school holiday period.
3.If a contact weekend does not occur on the weekend including Mother’s day then contact from 3.00pm on Saturday until 5.00pm Mother’s day.
4.If contact occurs on a day adjacent to a public holiday, contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday and if it is a Monday shall conclude at the usual time on the Monday.
5.On the second day of Ramadan and the second day of Kurban.
6.On the day after the child’s birthday.
7.At other times as agreed by the parties.
Weekend contact is suspended during school holidays.
SCHOOL HOLIDAY CONTACT:
1.SHALL commence at 9.00AM.
2.SHALL conclude at 2.00PM.
3.WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
4.Pupil free days are deemed to be school holidays.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed.
If contact falls on Father’s Day contact is suspended from 3.00PM Saturday.
That the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the child M E O born 31 January 1994 from the Commonwealth of Australia. It is requested that the Marshal of the Court and all forces of the Australian Federal Police and all police forces and services of various states and territories of Australia are required and empowered to give effect to these orders to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
That the Australian Federal Police place the children M E O born
31 January 1994 on the airport watch list, also known as the P.A.S.S. list, at all points…

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

AGLC: O and O [2001] FMCAfam 127
Case: [2001] FMCAfam 127
Decision Date: 8 October 2001

CaseChat Overview and Summary

The case before the court involved the parents of a child born in 1994, referred to as M E O, who were engaged in a dispute over parenting arrangements. The father, the applicant, sought a change in the existing parenting orders, while the mother, the respondent, opposed these changes. The court had to determine the best interests of the child in terms of living arrangements, decision-making responsibilities, and contact schedules.

The legal issues included whether the existing parenting orders should be discharged and replaced with new ones, determining the primary residence of the child, assigning responsibilities for long-term and day-to-day decisions, and defining specific contact arrangements between the mother and the child. The court also had to consider the child’s religious and cultural needs and ensure that the arrangements did not impede the child’s removal from Australia.

The court found that it was in the best interests of the child for the existing parenting orders to be discharged and replaced with new ones. It decided that the child should live primarily with the father but granted the mother specific contact times, including alternate weekends, school holidays, and certain religious and cultural observances. The court also mandated joint responsibility for long-term decisions and assigned the father primary responsibility for day-to-day decisions. Additionally, the court issued orders to prevent the removal of the child from Australia and to place the child on an airport watch list. The orders included specific provisions for contact during school holidays and modifications around public holidays and Father’s Day.

Orders

Orders of the court

That all existing parenting orders are discharged.

That the child M E O born 31 January 1994 (“the child”) live with the Applicant Father.

That the Father and Mother have joint responsibility for making decisions about the long term care, welfare and development of the child.

That the Father have responsibility for making decisions about the day to day care, welfare and development of the child.

That the Mother have contact to the child defined, but not limited to:

1. Each alternate weekend from 6.00pm Friday until 5.00pm Sunday commencing the second weekend after the Mother returns to Australia.

2. For the first half of each school holiday period.

3. If a contact weekend does not occur on the weekend including Mother’s day then contact from 3.00pm on Saturday until 5.00pm Mother’s day.

4. If contact occurs on a day adjacent to a public holiday, contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday and if it is a Monday shall conclude at the usual time on the Monday.

5. On the second day of Ramadan and the second day of Kurban.

6. On the day after the child’s birthday.

7. At other times as agreed by the parties.

Weekend contact is suspended during school holidays.

SCHOOL HOLIDAY CONTACT:

1. SHALL commence at 9.00AM.

2. SHALL conclude at 2.00PM.

3. WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.

4. Pupil free days are deemed to be school holidays.

After a period of school holiday contact, contact shall resume on the first weekend after school has resumed.

If contact falls on Father’s Day contact is suspended from 3.00PM Saturday.

10.

That the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the child M E O born 31 January 1994 from the Commonwealth of Australia. It is requested that the Marshal of the Court and all forces of the Australian Federal Police and all police forces and services of various states and territories of Australia are required and empowered to give effect to these orders to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.

11.

That the Australian Federal Police place the children M E O born

31 January 1994 on the airport watch list, also known as the P.A.S.S. list, at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the watch list until further Order of the Court.

12.

That all outstanding applications are otherwise dismissed and the matter be 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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