P & F - [2005] FMCAfam 393

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & F

[2005] FMCAfam 393

FAMILY LAW – Child – competing applications for residence – child aged eighteen months of part T and S background – high level of conflict between the parties – best interests – matters to be considered.

Family Law Act 1975 – ss.60E, 65E, 68F, 70NE

B and B: Family Law Reform Act (1997) FLC 92-755
T & N [2001] FMCA fam 222
Brown & Ferguson Unreported decision of Moore J number BR8668 of 1996
B & R & the Separate Representative (1995) FLC 92-636
Grant v Grant (1994) FLC 92-506
Russell v Close Unreported Full Court of the Family Court Number 45 of 1992
Sedgley v Sedgley (1995) FLC 92-623
In the marriage of J D & B G (1994) 18 FLR 255
In the marriage of Patsalou (1994) 18 FLR 426
Briginshaw v Briginshaw (1938) 60 CLR 336
Kelly & Kobelnek unreported decision of Justice Hannon Family Court of Australia
Stevenson v Hughes (1993) FLC 92-363

Applicant:

P M P

Respondent:

J C F

File Number:

DNM228 of 2004

Judgment of:

Brown FM

Hearing dates:

16 & 17 June and 27 July 2005

Delivered at:

Darwin

Delivered on:

4 August 2005

REPRESENTATION

Counsel for the Applicant:

Ms O

Solicitors for the Applicant:

N T L A C

Respondent:

In person

Counsel for the Child Representative:

Ms M

Solicitors for the Child Representative:

M & C S

ORDERS

(1)That the child of the relationship M C F-P born 20 December 2003 live with the mother.
(2)That the mother have responsibility for making all day to day decisions concerning the child’s care, welfare and development and in particular the medical practitioners the child attends and the routine medical treatment she receives.
(3)That the father have contact to the said child as follows:
(a)On each Tuesday and Thursday between the hours of 9.00am and 3.00pm with the child to be exchanged at the C Police Station at the beginning and end of each contact period.
(b)On any other occasions and on any other conditions as may be agreed between the parties from time to time.

(4)That each of the parties be and are restrained from denigrating the other party, in the presence or hearing of the child.
(5)That the father be restrained and an injunction issue restraining him from having the child medically examined without the mother’s written permission other than in the case of serious medical emergency.
(6)That the father be restrained and an injunction issue restraining him from consuming alcohol during any period of contact or for a period of six hours prior to any such period of contact.
(7)That the mother be restrained from changing the child’s place of residence from an area within a thirty kilometre radius of the D post office.
(8)That the mother be permitted to travel to B I with the child for periods of up to seven days every three months on giving seven days written notice to the father and in…

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 P & F

Details

AGLC: P & F [2005] FMCAfam 393
Case: [2005] FMCAfam 393
Decision Date: 4 August 2005

CaseChat Overview and Summary

In the Family Court of Australia, the matter of P & F was heard, involving the parents of a child born in 2003. The primary dispute centred on the living arrangements, care, and contact rights regarding the child, including medical decisions, residential location, and the parents’ conduct towards one another. The court was tasked with determining the most appropriate living arrangements for the child, as well as the specific conditions under which the father could have contact with the child, and the responsibilities of each parent concerning the child's welfare.

The legal issues that arose in this case required the court to consider the best interests of the child, as mandated by the Family Law Act. Key considerations included the child's need for stability, the ability of each parent to provide for the child's physical and emotional needs, and the potential impact of the parents' conduct on the child. The court also needed to assess the father's request for more extensive contact, the mother's proposed restrictions on the child's residence, and the restrictions on the father's alcohol consumption during contact periods.

The court delivered its decision by weighing the evidence presented and applying the relevant legal principles. It concluded that the child should live primarily with the mother, granting her responsibility for day-to-day decisions regarding the child's care, welfare, and development. The father was granted specific contact times with the child, subject to conditions to ensure the child's safety and well-being. The court also issued injunctions to prevent both parents from denigrating each other in the child's presence and imposed restrictions on the father's alcohol consumption and medical examinations of the child without the mother's consent. Additionally, the mother was restricted from moving the child's residence beyond a specified radius without prior notice to the father.

The final orders of the court reflect these findings and address the various aspects of the child's living arrangements, contact with the father, and the parents' conduct. The mother was granted primary residence of the child, with specific visitation rights for the father. Both parents were enjoined from certain conduct in the presence of the child and required to maintain communication and cooperation regarding the child's care and residence.

Orders

Orders of the court

(1) That the child of the relationship M C F-P born 20 December 2003 live with the mother.

(2) That the mother have responsibility for making all day to day decisions concerning the child’s care, welfare and development and in particular the medical practitioners the child attends and the routine medical treatment she receives.

(3) That the father have contact to the said child as follows:

(a) On each Tuesday and Thursday between the hours of 9.00am and 3.00pm with the child to be exchanged at the C Police Station at the beginning and end of each contact period.

(b) On any other occasions and on any other conditions as may be agreed between the parties from time to time.

(4) That each of the parties be and are restrained from denigrating the other party, in the presence or hearing of the child.

(5) That the father be restrained and an injunction issue restraining him from having the child medically examined without the mother’s written permission other than in the case of serious medical emergency.

(6) That the father be restrained and an injunction issue restraining him from consuming alcohol during any period of contact or for a period of six hours prior to any such period of contact.

(7) That the mother be restrained from changing the child’s place of residence from an area within a thirty kilometre radius of the D post office.

(8) That the mother be permitted to travel to B I with the child for periods of up to seven days every three months on giving seven days written notice to the father and in such eventuality Order 3(a) hereof is suspended.

(9) That the parties keep the other informed of their current residential addresses and contact telephone numbers and advise the other within forty eight hours of any change to those details.

(10) That the parties keep the other informed in the event the child is hospitalised due to injury or illness and provide details of the treating doctor or like professional.

(11) That the contravention application filed 12 November 2004 is dismissed.

(12) That all other applications are dismissed.

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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