Re Warren (a child - residence and contact) - [2002] FMCAfam 414

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Re WARREN (a child – residence and contact)

[2002] FMCAfam 414

FAMILY LAW – Children – residence and contact – one male child living with parents under a shared care arrangement – whether that arrangement should continue.

Applicant Father:

Respondent Mother:

File No:

NCM2028 of 2002

Delivered on:

30 September 2002

Delivered at:

Newcastle

Hearing Date:

30 September 2002

Judgment of:

FM Driver

REPRESENTATION

Counsel for the Applicant:

Mr R Wilkinson

Solicitors for the Applicant:

Boyd Wooi Olsen Lawyers

Solicitors for the Respondent:

Mr R Powe
Rod Powe Lawyers

THE COURT ORDERS

THAT WARREN, born 6 December 1998 (“the child”), live with the mother until he commences school.
THAT the father have contact with the child on an alternating weekly basis during school terms:
(a)during “week one” from 12.00pm on Saturday until 5.00pm on Tuesday, commencing 19 October 2002;
(b)during “week two” from 10.00am on Sunday until 5.00pm on Tuesday.
THAT the father have contact with the child during the Gazetted New South Wales school holidays except for the Christmas school holidays:
(a)for the first half of the holidays in odd numbered years;
(b)the second half of the holidays in even numbered years;
THAT the father have contact with the child:
(a)from 3.00pm on Christmas Day until 3.00pm on New Year’s Day in even numbered years;
(b)from 5.00pm on the last day of school until 3.00pm on Christmas Day in odd numbered years;
(c)between 8 January and 22 January in every year.
THAT contact be suspended on Mother’s Day between 9.00am and 5.00pm.
THAT the father have contact with the child at such other times and at such other places as the parties might agree from time to time.
THAT contact changeover is to occur as the parties agree, but in the absence of agreement, inside the McDonald’s Family Restaurant at Rutherford.
THAT both parties are to have telephone contact with the child at all reasonable times when the child is not in their care.
THAT when the child commences school, the child is to live with the father at those times when the father was exercising contact pursuant to orders 2-4, and live with the mother at all other times.
THAT each party be and is hereby restrained from denigrating the other in the presence of the child or knowingly permitting any other person to do so.
THAT each party provide such consents and authorities to allow the provision to the other party of any medical report or reports in relation to the child as required by the medical practitioner or practitioners.
THAT each party provide such requisite consents and/or authorities required by the school of the child to enable each party to receive report or reports, school photographs or any other notice or notices relating to the child and to permit both parents to attend the school of the child for the purpose of attending special events involving the child and/or to speak to the teachers of the child concerning…

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.

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Details

Case: [2002] FMCAfam 414
Decision Date: 30 September 2002

CaseChat Overview and Summary

This case involved an application by the father, P, seeking residence of their child, Warren, born on 6 December 1998, and contact orders. The application was opposed by the child's mother, T, who sought residence and defined contact with the child. The matter was heard on an interim basis on 28 February 2002, and the court made interim orders for alternating weekly contact between the child and the father, with additional contact at particular times. The court was required to decide on the best interests of the child and whether the current shared care arrangement should continue or if a change was warranted. The court considered the child's wishes, relationships with both parents, the likely effects of any change in the child's circumstances, the capacity of the parents to meet the child's needs, the child's maturity, sex, background, and other characteristics, and the need to protect the child from physical and psychological harm.

The court found that the child, Warren, had an extensive and good relationship with both parents, and the present shared care arrangement appeared to be working satisfactorily. The court was satisfied that both parents had the capacity to meet both the physical and emotional needs of Warren, and there was no evidence of any acts of violence by either parent against Warren. The court considered it likely that the best interests of the child would be served if the present arrangement was made permanent, with minor modifications. The court made orders 4, 5, 6, 7, 8, 9, 10, and 11 sought by the mother, in annexure B to her most recent affidavit.

The final orders made by the court were as follows: Warren is to live with the mother until he commences school. The father is to have contact with the child on an alternating weekly basis during school terms and during the school holidays, with specific arrangements outlined in the orders. Both parties are to have telephone contact with the child at all reasonable times when the child is not in their care. When the child commences school, he is to live with the father at those times when the father was exercising contact pursuant to orders 2-4, and live with the mother at all other times. Each party is to use all reasonable endeavours to ensure the child maintains his social, educational, and sporting commitments during each period the child is with that party. The parties are to keep each other informed of any changes to their telephone contact number. Both parties are to have joint responsibility for decisions concerning the long-term care, welfare, and development of the child. Neither party is to smoke indoors or in a motor vehicle in the presence of the child, and either party is to remove the child from the presence of any other person smoking indoors. The parties are to use all reasonable endeavours to ensure the child maintains his social, educational, and sporting commitments during each period the child is with that party.

Orders