Radcliffe & Sayer and Anor - [2012] FMCAfam 342

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RADCLIFFE & SAYER and ANOR

[2012] FMCAfam 342

FAMILY LAW – Children’s matters – where applicant is biological father of eighteen month old child and second respondent father of the older child – where applicant was father figure for the older child – where applicant has only seen the younger child for a total of less than twelve hours in the last twelve months and has spent no time with older child – where despite court orders for supervised time the mother chose to relocate to (omitted) – where younger child is unaware applicant is her father – order for the mother to return the children to Darwin – father to have unsupervised day time to increase gradually with both children – mother to attend family therapy – change of name – younger child to have hyphenated name.

Family Law Act 1975, Part VII, ss.60B, 60CC, 61DA, 65C(c), 65DAA

Goode & Goode [2006] FamCA 1346
Morgan & Miles (2007) FamCA 1230
MRR & GR (2010) HCA 4
Chapman & Palmer (1978) FLC 90-510

Applicant:

MR RADCLIFFE

First Respondent:

MS SAYER

Second Respondent:

MR BAGGOTT

File Number:

DNC 280 of 2011

Judgment of:

L.Turner FM

Hearing dates:

15 & 16 March 2012

Date of Last Submission:

16 March 2012

Delivered at:

Darwin

Delivered on:

17 April 2012

REPRESENTATION

Counsel for the Applicant:

Ms Farmer

Solicitors for the Applicant:

Withnalls Lawyers

Counsel for the First Respondent:

Ms Holtham

Solicitors for the First Respondent:

Holtham & Associates

The Second Respondent:

No Appearance

ORDERS

That all previous children’s orders are hereby discharged save and except the consent orders dated 12 April 2012.
That these orders be read in conjunction with and in addition to the final consent orders dated 12 April 2012.
That from the date hereof the child X born (omitted) 2010 shall be known as X and that each party shall do all such things and sign all such documents as are necessary to change the child’s name with Births, Deaths and Marriages Registry within fourteen (14) days from the date hereof and should either party fail to sign the requested documents a Registrar of the Family Court of Australia upon proof of an affidavit of such failure is appointed pursuant to section 106A of the Family Law Act 1975 to execute any required documents on behalf of either party to give full force and effect to this order.
That the children Y born (omitted) 2007 and X be returned to Darwin on or before 4 May 2012, failing which a recovery order in the usual terms will be issued forthwith.
That the children live with the mother within in the Darwin area, which includes all locations within a 30 kilometre radius of the Darwin Post Office.
That the children not be permitted to relocate from the Darwin area without the prior written approval of both parties or court order.
That the father is to spend time and communicate with the children as follows:-
(a)From Saturday…

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 Radcliffe & Sayer and Anor

Details

AGLC: Radcliffe & Sayer and Anor [2012] FMCAfam 342
Case: [2012] FMCAfam 342
Decision Date: 17 April 2012

CaseChat Overview and Summary

The case of Radcliffe & Sayer and Anor was heard in the Family Court of Australia. The dispute between the parents, Sayer and Radcliffe, pertained to the care, control, and residence of their children, Y and X, born in 2007 and 2010 respectively. The matter was resolved by consent orders, which stipulated specific arrangements for the children's living arrangements, visitation schedules, and other related issues. The legal issues before the court included determining the primary residence of the children, establishing a visitation schedule for the father, and outlining the procedures for modifying these arrangements in the future.

The court considered the welfare and best interests of the children as the paramount concern. The parents agreed on a detailed arrangement that allowed for the mother to have primary residence within a 30-kilometre radius of the Darwin Post Office. The father was granted a comprehensive visitation schedule, which included regular weekend and holiday visitations, escalating over a period from May 2012 to December 2012. The court also addressed the requirement for the father to suspend visitation upon prior written notice and allowed the mother to suspend visitation for up to four weeks per year with proper notice. The court required both parties to review and potentially revise the visitation arrangements by June 2013, and mandated that any disputes regarding the children must first be addressed through family dispute resolution before seeking further court intervention.

The final orders discharged all previous children's orders except the consent orders dated 12 April 2012. The children were to be returned to Darwin by a specific date, and the child X's name was to be changed. The father's visitation schedule was meticulously detailed, and both parties were required to execute necessary documentation to effect these changes. Additionally, the mother was mandated to give the father priority in caring for the children if she was unable to do so, and both parties were to review and potentially revise the visitation arrangements by June 2013. The orders also included provisions for telephone communication, the suspension of visitation, and the requirement for prior notice for any major decisions affecting the children.

Orders

Orders of the court

That all previous children’s orders are hereby discharged save and except the consent orders dated 12 April 2012.

That these orders be read in conjunction with and in addition to the final consent orders dated 12 April 2012.

That from the date hereof the child X born (omitted) 2010 shall be known as X and that each party shall do all such things and sign all such documents as are necessary to change the child’s name with Births, Deaths and Marriages Registry within fourteen (14) days from the date hereof and should either party fail to sign the requested documents a Registrar of the Family Court of Australia upon proof of an affidavit of such failure is appointed pursuant to section 106A of the Family Law Act 1975 to execute any required documents on behalf of either party to give full force and effect to this order.

That the children Y born (omitted) 2007 and X be returned to Darwin on or before 4 May 2012, failing which a recovery order in the usual terms will be issued forthwith.

That the children live with the mother within in the Darwin area, which includes all locations within a 30 kilometre radius of the Darwin Post Office.

That the children not be permitted to relocate from the Darwin area without the prior written approval of both parties or court order.

That the father is to spend time and communicate with the children as follows:-

(a) From Saturday 5 May 2012 and every fortnight thereafter until Saturday 8 September 2012 from 9.00am to 12 noon;

(b) From Saturday 8 September 2012 and every fortnight thereafter until Saturday 1 December 2012 from 9.00am to 2.00pm;

(d) Commencing Wednesday 9 May 2012 and every Wednesday thereafter from 2.30pm to 5.30pm;

(e) On 8 May of each year from 2.30pm to 5.30pm;

(f) On 20 September of each year from 2.30pm to 5.30pm;

(g) From 9.00am to 1.00pm each Father’s Day;

(h) For two (2) hours each Christmas Day at a time to be agreed upon between the parties;

(i) For two (2) hours each New Years Day at a time to be agreed upon between the parties;

(j) At all other times as agreed upon between the parties;

(k) Telephone communication at 6.00pm each Monday with the father to make the call to a number to be supplied by the mother, with the mother to ensure that Y is available to take the call.

That the father’s time with Y on a Saturday is to be suspended upon receipt of written details from Mr Baggott fourteen (14) days prior to the scheduled spend time with period of his intention to spend time with Y.

If for any reason the mother cannot care for the children or either child during the children’s time with the mother, then the mother must give first option of caring for the child or children to the father, and if the father is not available, then second option to the paternal grandmother. This order does not refer to the mother’s use of day-care, after school care or vacation care facilities when the children are in her care.

10.

That the mother is permitted to suspend the father’s time with the children for up to four (4) weeks a year, provided the mother gives fourteen (14) days written notice of when time will be suspended, together with details as to make up time for the father.

11.

That the father be notified in writing within fourteen (14) days of any decisions made by the mother and Mr Baggott in relations to any major long term issues regarding the child Y.

12.

That in June 2013 the parties are to take whatever steps are required to review the spend time with arrangements for the children with a view to increasing time to overnight and entering into consent orders reflecting the arrangements.

13.

In the event that the parties are unsuccessful in their negotiations, then an application can be made to the court, but only after the parties have attempted family dispute resolution.

14.

Pursuant to section 65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

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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