R and C - [2003] FMCAfam 161

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & C

[2003] FMCAfam 161

FAMILY LAW – CHILDREN – Proposal to remove child from one part of a state to another – parenting orders – contact orders – shared parenting proposal – planned relocation of mother – place of residence of child when one parent wishes to relocate – proposals of parents about residence and contact with child – best interests of child paramount consideration – child aged eleven years and six months at date of hearing – proposal that child reside for six months at a time with each parent and attend two different schools held to be unrealistic.

Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2)

AMS v AIF; AIF v AMS [1999] HCA 26; (1999) 24 Fam LR 756; FLC 92-852
U v U [2002] HCA 36; (2002) 29 Fam LR 74

A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382;
FLC 93-035

H v L [2000] FamCA 752; (2000) FLC 93-036
Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878
SMG v RAM [1999] FamCA 1845; (2000) FLC 93-020
Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755
Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598
R and R: Children’s Wishes (2000) 25 Fam LR 712; FLC 93-000
H & L [2000] FamCA 752; FLC 93-036 - distinguished
Raby (1976) 2 Fam LR 11,348; FLC 90-104

Applicant:

D M R

Respondent:

L C

File No:

NCM 2806 of 2002

Delivered on:

2 May 2003

Delivered at:

Hearing Dates:

3 & 4 April 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

In Person

Solicitor for the Respondent:

Perry & Smith

ORDERS

All earlier parenting orders are discharged.
The child C K R born 20 October 1991 is to reside with the Respondent mother who is to have responsibility for the day to day care, welfare and development of the said child on all occasions when the child is in her care.
The father and the mother are to retain joint responsibility for the long-term decisions affecting the care, welfare and development of the said child.
The father is to have contact with the said child as follows:
(a)on the fourth weekend of each month during school term time, commencing at 6.00 pm on the Friday and concluding at 5.00 pm on the Sunday PROVIDED THAT if the Monday following the weekend is a public holiday then contact will conclude at 5.00 pm on the Monday;
(b)for half of each of the autumn and spring school holiday periods as agreed between the parties and, in default of agreement, the first half;
(c)for the whole of the winter school holiday period in each year;
(d)for the second half of the Christmas/January school holiday periods commencing in December 2003 and each odd numbered year thereafter and for the first half of…

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: R and C [2003] FMCAfam 161
Case: [2003] FMCAfam 161
Decision Date: 2 May 2003

CaseChat Overview and Summary

This matter involves a dispute between the parents of a child born in 1991, concerning parenting arrangements. The case was heard in the Family Court of Australia. The father filed an application seeking various parenting orders, which the mother opposed on several grounds.

The primary legal issue was determining the most appropriate parenting arrangements for the child, considering the best interests of the child as the paramount concern. The court was tasked with evaluating the evidence presented by both parties regarding their respective capabilities and suitability to care for the child, and to make orders that would facilitate the child's welfare and development.

The court considered the evidence and submissions from both parties, focusing on the child's best interests. The court found that it was in the child's best interest for her to primarily reside with the mother, who was deemed better placed to provide day-to-day care. However, the court also recognised the importance of the father's involvement in the child's life. The court issued detailed contact arrangements, specifying the times and conditions under which the father could have contact with the child. These arrangements aimed to balance the child's need for stability and continuity with her mother, while also ensuring meaningful and regular contact with her father.

In conclusion, the court discharged all previous parenting orders and issued new orders that provided for the child to primarily reside with the mother, with detailed provisions for the father's contact. The orders also included provisions for joint decision-making, information sharing, and specific contact arrangements to ensure the child's welfare and development were prioritised.

Orders

Orders of the court

All earlier parenting orders are discharged.

The child C K R born 20 October 1991 is to reside with the Respondent mother who is to have responsibility for the day to day care, welfare and development of the said child on all occasions when the child is in her care.

The father and the mother are to retain joint responsibility for the long-term decisions affecting the care, welfare and development of the said child.

The father is to have contact with the said child as follows:

(a) on the fourth weekend of each month during school term time, commencing at 6.00 pm on the Friday and concluding at 5.00 pm on the Sunday PROVIDED THAT if the Monday following the weekend is a public holiday then contact will conclude at 5.00 pm on the Monday;

(b) for half of each of the autumn and spring school holiday periods as agreed between the parties and, in default of agreement, the first half;

(d) for the second half of the Christmas/January school holiday periods commencing in December 2003 and each odd numbered year thereafter and for the first half of each of the said school holiday periods commencing in December 2004 and each even numbered year thereafter;

(e) for the weekend that includes Father’s Day in each year;

(f) from 9.00 am to 5.00 pm on any two Saturdays or Sundays during each school term to be exercised in the N metropolitan area provided that the father gives the mother not less than fourteen (14) days notice of his intention to exercise such contact;

(g) for not less than two (2) hours on the child’s birthday if that day falls on a school day or for not less than four (4) hours if that day falls on a weekend, such contact to be exercised in the N metropolitan area;

(h) by telephone each evening during school term time between the hours of 6.00 pm and 6.30 pm, and at any reasonable time on the child’s birthday, the father to telephone the child on her mobile telephone;

(i) by telephone on the father’s birthday, for which purpose the mother shall do all things necessary to assist the child to telephone the father; and

(j) at such other times as the parties shall agree.

The father is not to exercise contact with the child on the weekend that includes Mother’s Day.

For the purpose of exercising contact, the father shall collect the child from the mother or her nominee at the McDonald’s Family Restaurant at Taree at the commencement of each contact and return the child to the mother or her nominee at the conclusion of each contact period.

The father is to have the responsibility for the day to day care welfare and development of the said child at all times when she is in his care.

The mother is to inform the father of any medical specialist appointment arranged for the said child or any illness or injury sustained by the said child requiring treatment at a hospital within a reasonable time of such event occurring.

The mother is to do all such things as may be necessary to authorise the principal of any school attended by the said child to provide to the father on a regular basis at his expense copies of all school reports relating to the child, newsletters, bulletins and information about school photographs as are usually provided to parents of children attending the child’s school.

10.

All documents produced in answer to any subpoena with the exception of exhibits may be returned.

11.

The application is 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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