R and R - [2007] FMCAfam 29

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & R

[2007] FMCAfam 29

FAMILY LAW – Interim arrangements for parenting of three children aged 9, 8 and 4 – mother unilaterally removed children from A S, Northern Territory to Y, S A in September 2006 – father commences proceedings in November 2006 – considerations of status quo in regards to parenting arrangements and acquiescence to them by father – allegations of family violence and abuse – whether presumption of equal shared parental responsibility should be rebutted – best interest of children – children’s entitlement to have a “meaningful” relationship with both parents.

Family Law Act 1975 – ss.4, 60B, 60CA, 60CC, 61DA, 61DB, 64B, 65DAA, 65DAC

Goode & Goode [2006] Fam CA 1346
Cowling v Cowling (1998) FLC 92-801
JG & BG 18 Fam LR 255
Campbell and Spalding (unreported) Full Court of the Family delivered 15 May 1998

Applicant:

R R

Respondent:

J R

File number:

DNM3069 of 2006

Judgment of:

Brown FM

Hearing date:

22 January 2007

Delivered at:

Darwin

Delivered on:

25 January 2007

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Collier Deane

Counsel for the Respondent:

Ms Lewis

Solicitors for the Respondent:

Christopher Ganzis & Co

ORDERS

The parties’ competing applications be fixed for final hearing in the week long sittings of the court at A S commencing on 28 May 2007 and if not reached in that circuit on 28 and 29 August 2007 at A S as a fixture.
The applicant pay the hearing fee of THREE HUNDRED AND SIXTY FOUR DOLLARS ($364.00) or file a remission certificate in respect thereof within 28 days of today’s date.
The parties file and serve all affidavits of evidence on which they propose to rely at final hearing by 1 May 2007.
A family report be prepared.
The parties retain joint responsibility for making all decisions relating to major long term issues pertaining to the children of the marriage A J R born 29 April 1997; I M R born 17 September 1998 and S M R born 29 January 2002, hereinafter referred to as “the children”.
The mother return the children to A S by 6.00pm on 31 January 2007 at her own expense.

UNTIL FURTHER OR OTHER ORDER:

Provided the mother elects to live permanently in the municipal area of the Township of A S after 31 January 2007 the children live with her and spend time with the father as follows:
(a)During school terms on alternate weekends from after school on Friday until the commencement of school the following Monday or Tuesday in the event that the preceding Monday is a public holiday;
(b)During each school week from after school on Tuesday until the commencement of school the following Wednesday;
(c)For half of each school holiday period.
In the event that the mother does not elect to return to live in A S after 31 January 2007, the children live with the father in A S and spend time with the…

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 [2007] FMCAfam 29
Case: [2007] FMCAfam 29
Decision Date: 25 January 2007

CaseChat Overview and Summary

In the Family Court of Australia, the case of R and R involved a dispute between the parties over the care and custody of their three children. The matter was brought before the court as both parties filed applications seeking orders regarding the children's living arrangements and contact with each party.

The court was required to determine the living arrangements and contact details for the children in the interim period before the final hearing, which was scheduled for 28 May 2007. This involved deciding whether the children would live with the mother or father, and the respective arrangements for time spent with the other parent. Additionally, the court needed to address the mother's relocation and its impact on the children's living situation.

In delivering the decision, the court considered the best interests of the children as the paramount concern. It found that the children would live with the mother if she chose to reside permanently in the area, and otherwise, they would live with the father. The court also set out detailed arrangements for the children's time with each parent, ensuring that the children would have frequent contact with both parties. The court further ordered the parties to keep each other informed of the children's health and medical treatment and mandated regular communication between the children and the non-resident parent.

The final orders included setting the hearing dates, requiring the payment of hearing fees, and mandating the preparation of a family report. The parties were also instructed to file and serve their affidavits by a specified date and to maintain joint responsibility for major decisions affecting the children. The court directed the mother to return the children to the father by a certain date, with specific provisions for the children's living arrangements contingent on the mother's decision to relocate.

Orders

Orders of the court

The parties’ competing applications be fixed for final hearing in the week long sittings of the court at A S commencing on 28 May 2007 and if not reached in that circuit on 28 and 29 August 2007 at A S as a fixture.

The applicant pay the hearing fee of THREE HUNDRED AND SIXTY FOUR DOLLARS ($364.00) or file a remission certificate in respect thereof within 28 days of today’s date.

The parties file and serve all affidavits of evidence on which they propose to rely at final hearing by 1 May 2007.

A family report be prepared.

The parties retain joint responsibility for making all decisions relating to major long term issues pertaining to the children of the marriage A J R born 29 April 1997; I M R born 17 September 1998 and S M R born 29 January 2002, hereinafter referred to as “the children”.

The mother return the children to A S by 6.00pm on 31 January 2007 at her own expense.

UNTIL FURTHER OR OTHER ORDER:

Provided the mother elects to live permanently in the municipal area of the Township of A S after 31 January 2007 the children live with her and spend time with the father as follows:

(a) During school terms on alternate weekends from after school on Friday until the commencement of school the following Monday or Tuesday in the event that the preceding Monday is a public holiday;

(b) During each school week from after school on Tuesday until the commencement of school the following Wednesday;

In the event that the mother does not elect to return to live in A S after 31 January 2007, the children live with the father in A S and spend time with the mother as follows:

(a) For the whole of the end of first term Northern Territory school holiday in 2007 and for half of each school holiday thereafter;

(b) And at any other times as may be agreed between the parties.

In the event the mother elects to return to live in A S after 31 January 2007, the father forthwith vacate the former family home situated at 24 Lindsay Avenue, A S provided the mother, through her solicitor, informs the father of her intention to live in the said property with the children concerned.

10.

The parties keep the other informed of any illness or accident concerning the children and provide the other with details of all medical treatment prescribed and the names of all treating doctors.

11.

The children communicate with each of the parties by telephone, when not in the care of that party, on a liberal basis but on no less than three occasions each week.

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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