R and R - [2002] FMCAfam 243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & R

[2002] FMCAfam 243

CHILDREN – Best interests – shared care – Family Law Act 1975, ss.60B(1), 60B(2), 68F, 68F(2) – B and B: Family Law Reform Act (1997) FLC 92-755 –
T & N [2001] FMCAfam 222 – A v A (Minors) [1994] 1 FAM LR (Eng) 669.

Applicant:

C A R

Respondent:

D R

File No:

(P)DNM2630 of 2001

Delivered on:

9 August 2002

Delivered at:

Darwin

Hearing Dates:

1 & 2 August 2002

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Mr B Cassells

Solicitors for the Applicant:

Terrill & Associates

Counsel for the Respondent:

Mr A Young

Solicitors for the Respondent:

Sivyer & Associates

ORDERS

That the parents retain joint responsibility for making decisions concerning the long term care, welfare and development of the children of the marriage D R born 25 April 1995 and J R born 6 October 1997.
That the children of the marriage D R born 25 April 1995 and J R born 6 October 1997 live with both the parties as follows:

WITH THE HUSBAND :

(i)From 2.45pm Thursday until 2.45pm the following Monday each alternate week commencing 15 August 2002; and
(ii)From 2.45pm Thursday until 2.45pm the following Friday each alternate week commencing 22 August 2002; and
(iii)Each Father’s Day from 6.00pm on the day before Father’s Day until 6.00pm Father’s Day; and
(iv)Half of each school holiday period, with the husband to have the first half of all school holidays commencing in 2002 and each alternate year thereafter and the second half of all school holidays commencing in 2003 and each alternate year thereafter.

WITH THE MOTHER:

(v)At all other times and notwithstanding anything contained in order 2 herein, from 6.00pm the day before Mother’s Day each year until 6.00pm on Mother’s Day each year.

That unless the parties agree otherwise, the said children spend:
a.From 9.00am to 6.00pm on the husband’s birthday, unless such day falls on a school day and in that event, from 2.45pm until 6.00pm on that day with the husband; and
b.From 9.00am to 6.00pm on the wife’s birthday, unless such day falls on a school day and in that event, from 2.45pm until 6.00pm on that day with the wife; and
c.From 7.00pm on the eve of Vesak Day until 7.00pm Vesak Day and from 7.00pm Sinhala New Year’s Day, with the husband, unless such days fall on a school day and in that event, from 2.45pm until 6.00pm those days. In the event that either day falls during a school holiday period, then such contact is suspended if the children are holidaying outside Darwin with the mother.
d.For a minimum of 2 hours on the children’s birthdays if such birthdays fall on a school day and for a minimum of 5 hours if they fall on a non-school day with the non-residential parent; and
i.Subject to the children being within 100km of the Darwin GPO, from 12 noon Christmas Eve until 12 noon Christmas…

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 R and R

Details

AGLC: R and R [2002] FMCAfam 243
Case: [2002] FMCAfam 243
Decision Date: 9 August 2002

CaseChat Overview and Summary

The case of R and R involved a dispute between the parents of two children, D R and J R, concerning the arrangement of their living and care arrangements. The matter was heard in the Family Court of Australia, which is responsible for dealing with family law matters including those related to the care and custody of children.

The court was required to decide on several key legal issues. These included determining the best living arrangements for the children, ensuring that both parents retained joint responsibility for making decisions about the children's long-term care, welfare, and development, and outlining specific arrangements for holidays and special occasions. The court also needed to address the communication and contact between the children and each parent.

In reaching its decision, the court emphasised the importance of maintaining a balanced and fair arrangement that allowed both parents to play an active role in the children's lives. The court set out detailed arrangements for the children's living schedule, including specific times for handovers and the division of school holidays. Special provisions were made for significant family events and birthdays, ensuring that both parents had meaningful contact with the children on these occasions. The court also mandated that the parents keep each other informed about their contact details and current addresses. Both parents were granted responsibility for day-to-day care decisions when the children were with them and were permitted to contact the children at reasonable times.

The final orders ensured that both parents retained joint responsibility for major decisions concerning the children, established a detailed and flexible living arrangement, and required the parents to maintain communication with each other and the children. The orders also included specific provisions for the children's contact with each parent on special occasions and holidays.

Orders

Orders of the court

That the parents retain joint responsibility for making decisions concerning the long term care, welfare and development of the children of the marriage D R born 25 April 1995 and J R born 6 October 1997.

That the children of the marriage D R born 25 April 1995 and J R born 6 October 1997 live with both the parties as follows:

WITH THE HUSBAND :

(i) From 2.45pm Thursday until 2.45pm the following Monday each alternate week commencing 15 August 2002; and

(ii) From 2.45pm Thursday until 2.45pm the following Friday each alternate week commencing 22 August 2002; and

(iii) Each Father’s Day from 6.00pm on the day before Father’s Day until 6.00pm Father’s Day; and

(iv) Half of each school holiday period, with the husband to have the first half of all school holidays commencing in 2002 and each alternate year thereafter and the second half of all school holidays commencing in 2003 and each alternate year thereafter.

WITH THE MOTHER:

(v) At all other times and notwithstanding anything contained in order 2 herein, from 6.00pm the day before Mother’s Day each year until 6.00pm on Mother’s Day each year.

That unless the parties agree otherwise, the said children spend:

a. From 9.00am to 6.00pm on the husband’s birthday, unless such day falls on a school day and in that event, from 2.45pm until 6.00pm on that day with the husband; and

b. From 9.00am to 6.00pm on the wife’s birthday, unless such day falls on a school day and in that event, from 2.45pm until 6.00pm on that day with the wife; and

c. From 7.00pm on the eve of Vesak Day until 7.00pm Vesak Day and from 7.00pm Sinhala New Year’s Day, with the husband, unless such days fall on a school day and in that event, from 2.45pm until 6.00pm those days. In the event that either day falls during a school holiday period, then such contact is suspended if the children are holidaying outside Darwin with the mother.

d. For a minimum of 2 hours on the children’s birthdays if such birthdays fall on a school day and for a minimum of 5 hours if they fall on a non-school day with the non-residential parent; and

i. Subject to the children being within 100km of the Darwin GPO, from 12 noon Christmas Eve until 12 noon Christmas Day with the wife; and

ii. Subject to the children being within 100km of the Darwin GPO, from 12 noon until 7.00pm Christmas Day with the husband; and

iii. Subject to the children being within 100km of the Darwin GPO, from 12 noon New Year’s Eve until 12 noon New Year’s Day with the wife.

e. At all other times as may be agreed between the parties from time to time.

That the parties inform each other at all times as to their current residential address and contact landline telephone number and email address; including addresses and telephone numbers whilst on holidays outside Darwin.

That each of the parents have responsibility for making decisions concerning the day to day care, welfare and development of the said children whenever in their care.

That each of the parents be permitted to telephone the children at all reasonable times.

Pursuant to section 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in annexure A.

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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