R & W - [2007] FMCAfam 868

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & W

[2007] FMCAfam 868

FAMILY LAW – Parenting orders – interim – mother relocated to New South Wales – child left in Western Australia with father – disputed cohabitation – parties’ financial positions – risk of harm from neglect – mother’s relocation because of new relationship – other factors considered.

Family Law Act 1975 (Cth), ss.60B, 60CC(2) (3), (4) & (4A), and 65DAA(1)(b)
Federal Magistrates Act 1999 (Cth), ss.3 and 42
Federal Magistrates Court Rules 2001 (Cth), r.1.03

B & B [2007] FMCAfam 82
Goode & Goode (2006) 206 FLR; [2006] FamCA 1346
Hungerford & Tank [2007] FamCA 637
L v T (1999) FLC 92; [1999] FamCA 1699
T & N (2003) FLC 930; [2003] FamCA 1129
MDT & KPR [2007] FMCAfam 867

P. Parkinson, ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 AJFL 179

Applicant:

A R

Respondent:

J W

File Number:

NCC 2418 of 2007

Judgment of:

Lucev FM

Hearing date:

27 September 2007

Date of Last Submission:

27 September 2007

Delivered at:

Darwin (by telephone)

Delivered on:

2 November 2007

REPRESENTATION

Counsel for the Applicant:

Ms Manning

Solicitors for the Applicant:

Merrick Spicer & Associates

Counsel for the Respondent:

Mr Byrnes

Solicitors for the Respondent:

Byrnes Lawyers

ORDERS

The child J W born 2005 is to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.
Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.
The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales of these orders.
Liberty is granted to the Legal Aid Commission to appoint an agent in Western Australia.
The child J W born 2005 live with the father.
J spend time with the mother as follows:
7.1If the mother resides within 50 kilometres of the father then from 6.00pm Friday until 6.00pm Monday each week;
7.2If the mother does not reside within 50 kilometres of the father then:
7.2.1For a period of five days in every four weeks from 9.00am Monday until 9.00am on the Saturday with the first such occasion to be the second Monday following the making of these Orders and thereafter every four weeks with the mother spending such time with J in Western Australia;
7.2.2The first period of time the mother spends with J shall be graduated such that the mother shall spend a period of three hours with J on the Monday from 9.00am until 12.00 noon, a period of five hours with J from 9.00am until 2.00om on the Tuesday, a period of seven hours with J from 9.00am until 4.00pm on the Wednesday and from 9.00am…

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 & W

Details

AGLC: R & W [2007] FMCAfam 868
Case: [2007] FMCAfam 868
Decision Date: 2 November 2007

CaseChat Overview and Summary

In the Family Court of Australia, the matter of R & W involved the determination of parental arrangements for the child J W, born in 2005. The primary concern was the allocation of parenting time between the father and the mother, considering the best interests of the child. The legal issues before the court encompassed the scheduling of parenting time, the provision of separate legal representation for the child, and the need for both parents to furnish relevant documentation to the Legal Aid Commission of New South Wales.

The court meticulously evaluated the evidence presented and the submissions made by both parties. It emphasised the importance of ensuring that the child had a voice in the proceedings through separate representation. The court also highlighted the necessity of both parents to provide comprehensive documentation to facilitate informed decision-making. The court's reasoning underscored the paramountcy of the child's best interests, which dictated the detailed parenting arrangements set forth in the orders.

The court determined that J W should live primarily with the father but would spend specific periods with the mother. The arrangements varied depending on the mother's residence, with detailed schedules provided for both scenarios. Additionally, the court mandated that both parents must promptly provide all relevant documentation to the Legal Aid Commission. The orders also included provisions for the mother to communicate with the child by telephone during non-visit periods. Finally, the court granted Liberty to the Legal Aid Commission to appoint an agent in Western Australia and set a date for a future directions hearing.

The court's final orders included the appointment of separate legal representation for J W, mandated documentation submissions to the Legal Aid Commission, detailed parenting time schedules, and a directive for future communication between the mother and the child. The matter was adjourned to a specified date for further directions.

Orders

Orders of the court

The child J W born 2005 is to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.

Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.

Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.

The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales of these orders.

Liberty is granted to the Legal Aid Commission to appoint an agent in Western Australia.

The child J W born 2005 live with the father.

J spend time with the mother as follows:

7.1 If the mother resides within 50 kilometres of the father then from 6.00pm Friday until 6.00pm Monday each week;

7.2 If the mother does not reside within 50 kilometres of the father then:

7.2.1 For a period of five days in every four weeks from 9.00am Monday until 9.00am on the Saturday with the first such occasion to be the second Monday following the making of these Orders and thereafter every four weeks with the mother spending such time with J in Western Australia;

7.2.2 The first period of time the mother spends with J shall be graduated such that the mother shall spend a period of three hours with J on the Monday from 9.00am until 12.00 noon, a period of five hours with J from 9.00am until 2.00om on the Tuesday, a period of seven hours with J from 9.00am until 4.00pm on the Wednesday and from 9.00am on Thursday until 9.00am on the Friday.

7.3 The mother is to collect J from the father's residence at the commencement of each period she spends time with the child and is to return J to the same address at the conclusion of such periods.

7.4 During periods when the mother is not spending time with J she shall communicate with him by telephoning him between 6.00pm and 7.00pm three times per week.

The matter is adjourned to 9.30am 22 November 2007 for a directions hearing.

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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