Raymond and Choate - [2010] FMCAfam 451

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAYMOND & CHOATE

[2010] FMCAfam 451

FAMILY LAW – Interim parenting – change of residence – mother has not complied with order to attend counselling with the child – Expert evidence is in favour of a change of residence – child to live with father – no contact with mother for three months.

Applicant:

MR RAYMOND

Respondent:

MS CHOATE

File Number:

SYC 2546 of 2007

Judgment of:

Altobelli FM

Hearing date:

9 April 2010

Date of Last Submission:

9 April 2010

Delivered at:

Sydney

Delivered on:

9 April 2010

REPRESENTATION

Counsel for the Applicant:

Mr Kenny

Solicitors for the Applicant:

DTA Lawyers

The Respondent:

Self-represented

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission of NSW

Solicitor-Advocate for the Independent Children’s Lawyer:

Ms Power

ORDERS

The Orders made 12 February 2008 are discharged.
The Child [X] born [in] 2000 live with the Father.
That the Child spend time with the Mother as follows:-
(a)each alternate weekend from 10.00am Saturday until 6.00pm on Sunday;
(b)from 3.00pm on Christmas Eve each year until 11.00am on Christmas Day;
(c)for four (4) hours on the Child’s birthday;
(d)for four (4) hours on the Mother’s birthday.
That the operation of the order referred to in the preceding paragraph be suspended for a period of three (3) months from the date of these orders.
The matter be adjourned to 9 July 2010 at 9.30am for mention.
The parties have liberty to apply on 72 hours notice.
Pursuant to s.67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Magistrates Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child [X] born [in] 2000 and to return/deliver the said child to the Applicant and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

IT IS NOTED that publication of this judgment under the pseudonym Raymond & Choate is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2546 of 2007

MR RAYMOND

Applicant

And

MS CHOATE

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

I provide the following ex tempore reasons in the matter of Raymond and Choate. This is an application in relation to a child, [X], who is

10 years old. The applicant is [X]’s father, and the respondent her mother. The matter has a very long history and the decision is a very difficult one to make.
The father’s proposal today is in accordance with his amended application that was filed on 23 December and, in effect, he seeks that all previous orders be discharged, that he have sole parental responsibility in respect to [X], that [X] live with him and spend…

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 Raymond and Choate

Details

AGLC: Raymond and Choate [2010] FMCAfam 451
Case: [2010] FMCAfam 451
Decision Date: 9 April 2010

CaseChat Overview and Summary

Raymond and Choate involved a dispute over the custody of a child, [X], born in 2000. The Federal Magistrates Court was tasked with determining the living arrangements and visitation rights for the child between the Father and the Mother. The Father sought primary care of the child, while the Mother wished to maintain regular contact. The case reached the Court following an earlier order that was subsequently discharged.

The legal issues before the Court were primarily about the best interests of the child, including the allocation of primary residence, the schedule for visitation, and the circumstances under which the visitation schedule would be suspended. The Court had to weigh various factors such as the child's emotional and psychological well-being, the ability of each parent to provide a stable and nurturing environment, and the potential impact of the visitation schedule on the child's development.

The Court found that it was in the child's best interests for the Father to have primary care, with specific visitation rights granted to the Mother. The visitation schedule was designed to ensure that the Mother could maintain a meaningful relationship with the child while balancing the Father's role as the primary caregiver. The Court also imposed a temporary suspension of the visitation schedule to allow the parties to adjust to the new arrangements. The Court further issued a recovery order to ensure the child's safe return if necessary, highlighting the importance of the child's welfare in its decision-making process.

Orders

Orders of the court

The Orders made 12 February 2008 are discharged.

The Child [X] born [in] 2000 live with the Father.

That the Child spend time with the Mother as follows:-

(a) each alternate weekend from 10.00am Saturday until 6.00pm on Sunday;

(b) from 3.00pm on Christmas Eve each year until 11.00am on Christmas Day;

(d) for four (4) hours on the Mother’s birthday.

That the operation of the order referred to in the preceding paragraph be suspended for a period of three (3) months from the date of these orders.

The matter be adjourned to 9 July 2010 at 9.30am for mention.

The parties have liberty to apply on 72 hours notice.

Pursuant to s.67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Magistrates Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child [X] born [in] 2000 and to return/deliver the said child to the Applicant and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

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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