Roberts and Chisholm - [2008] FMCAfam 1419

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROBERTS & CHISHOLM

[2008] FMCAfam 1419

FAMILY LAW – Parenting – competing applications as to with whom 12 year old boy should live – child has always lived with mother – mother has personality difficulties – where child should live and attend school – need for routine and stability.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAC

Applicant:

MR ROBERTS

Respondent:

MS CHISHOLM

File Number:

SYM 8753 of 2006

Judgment of:

Sexton FM

Hearing dates:

3, 4 & 5 December 2008

Date of Last Submission:

5 December 2008

Delivered at:

Sydney

Orders delivered on:

19 December 2008

Reasons for Judgment delivered on:

23 December 2008

REPRESENTATION

Applicant:

In person

Respondent:

In person by telephone

Counsel for the Independent Children’s Lawyer

Ms K. Reynolds

Solicitor for the Independent Children’s Lawyer

Mark Whelan Lawyers

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The child [X], born 21 March 1996, live with the father.
[X] attend [S] School or [C] School in 2009 whichever first offers him a place and the father meet the expenses related to [X]’s attendance at that school.
The father have sole parental responsibility for [X] in relation to major decisions concerning his welfare, including but not limited to [X]’s choice of secondary school in the event a place is not available at [S] School or [C] School in 2009.
Each party have day to day responsibility for [X] when [X] is in that party’s care.
Except as otherwise provided in these Orders, and providing the mother is living in the vicinity of Newcastle or the Central Coast, [X] spend time with the mother as follows:
(a)From 5 p.m. on Christmas Eve until 5 p.m. on 2 January 2009; and
(b)From 5 p.m on 13 January 2009 until 5 p.m. on 23 January 2009.
In addition to the time specified in Order (6) [X] spend time with the mother as follows:
(a)Provided that the mother lives within a 110km radius of the father’s residence:
(i)For two out of three weekends during school terms, commencing on the second weekend after the commencement of each school term and thereafter on the second and third weekends of each three weekly cycle until [X] completes Year 9, after which time, unless otherwise agreed between the parties, [X] will spend each alternate weekend with the mother with the exception of the Father’s Day weekend when [X] will remain with the father and spend, in substitution, the following weekend with the mother;
(ii)Until [X] completes Year 9, unless otherwise agreed between the parties, on Thursday afternoons of the first week in the cycle (being the Thursday immediately before [X]’s weekend with the father) from after school until 7 p.m when the mother will collect [X] from school at the beginning of the time and return him to [location omitted] in [K] at the end of the time;
(iii)On the Mother’s Day weekend provided that if the Mother’s Day weekend falls on the weekend [X] would…

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 Roberts and Chisholm

Details

AGLC: Roberts and Chisholm [2008] FMCAfam 1419
Case: [2008] FMCAfam 1419
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the case of Roberts and Chisholm, the primary dispute was over the custody and care arrangements for their son, [X]. The Family Court of Australia was tasked with determining the parenting orders that would be in the best interests of [X]. The parents had differing views on where [X] should live, the educational choices, and the visitation schedules with the non-residential parent.

The court had to resolve several key legal issues. These included determining the primary residence of [X], establishing the educational provisions for [X], setting out the visitation schedule for the non-residential parent, assigning parental responsibilities, and establishing the parameters of communication between the parents and [X]. Additionally, the court needed to consider the restrictions on the parents' conduct to ensure a healthy environment for [X].

The court found that it was in [X]'s best interests to live primarily with the father, with specific arrangements for schooling and visitation with the mother. The court detailed a comprehensive schedule for the mother's visitation rights, taking into consideration the distance between the parents' residences. The court also outlined the responsibilities for each parent concerning [X]'s major life decisions and day-to-day care. Furthermore, the court imposed strict guidelines on the parents' behaviour, including restrictions on substance use, physical discipline, and communication to protect [X]'s well-being. The court also mandated individual counselling for both parents and required the father to inform the mother of [X]'s school details and provide her with school-related communications. The court's reasoning was based on ensuring [X]'s stability, educational continuity, and a harmonious relationship between the parents for the sake of [X]'s upbringing.

The court's final orders included discharging all previous parenting orders and establishing new ones that detailed the living arrangements, educational provisions, visitation schedules, parental responsibilities, communication restrictions, and conduct guidelines for both parents. These orders were designed to foster a stable and supportive environment for [X], balancing the parents' rights and responsibilities with [X]'s best interests.

Orders

Orders of the court

All previous parenting orders be discharged.

The child [X], born 21 March 1996, live with the father.

[X] attend [S] School or [C] School in 2009 whichever first offers him a place and the father meet the expenses related to [X]’s attendance at that school.

The father have sole parental responsibility for [X] in relation to major decisions concerning his welfare, including but not limited to [X]’s choice of secondary school in the event a place is not available at [S] School or [C] School in 2009.

Each party have day to day responsibility for [X] when [X] is in that party’s care.

Except as otherwise provided in these Orders, and providing the mother is living in the vicinity of Newcastle or the Central Coast, [X] spend time with the mother as follows:

(a) From 5 p.m. on Christmas Eve until 5 p.m. on 2 January 2009; and

(b) From 5 p.m on 13 January 2009 until 5 p.m. on 23 January 2009.

In addition to the time specified in Order (6) [X] spend time with the mother as follows:

(a) Provided that the mother lives within a 110km radius of the father’s residence:

(i) For two out of three weekends during school terms, commencing on the second weekend after the commencement of each school term and thereafter on the second and third weekends of each three weekly cycle until [X] completes Year 9, after which time, unless otherwise agreed between the parties, [X] will spend each alternate weekend with the mother with the exception of the Father’s Day weekend when [X] will remain with the father and spend, in substitution, the following weekend with the mother;

(ii) Until [X] completes Year 9, unless otherwise agreed between the parties, on Thursday afternoons of the first week in the cycle (being the Thursday immediately before [X]’s weekend with the father) from after school until 7 p.m when the mother will collect [X] from school at the beginning of the time and return him to [location omitted] in [K] at the end of the time;

(iii) On the Mother’s Day weekend provided that if the Mother’s Day weekend falls on the weekend [X] would otherwise have been with the father, [X] will spend the second weekend of that three week cycle with the father, or the following weekend if [X] is spending alternate weekends with the mother.

(b) In the event the mother lives a distance of between 110 km and 180 km from the father’s residence, [X] spend each alternate weekend during school terms with the mother, commencing on the second weekend after the commencement of each school term.

(c) In the event the mother lives more than 180km from the father’s residence the mother be permitted to spend time with [X] on two weekends each school term, being the 2nd and 7th weekends of the school term, such time to be spent in the Newcastle/Central Coast region and the mother to give the father no less than 7 days notice of her intention to spend time with [X] on those occasions and changeover to occur as in Order (8).

(d) Irrespective of where the mother is living, for one half of each school holiday period commencing in the first term school holidays in 2009, being the first half in 2009 and all years ending in an odd number and the second half in 2010 and in all years ending in an even number.

(e)

Time on weekends to commence on Friday afternoon after school and conclude before school on Monday if the Order for 2 out of

3 weekends applies and otherwise time on weekends to conclude on Sunday at 5.00p.m.

(f) To calculate the middle of any school holiday period, the first day of the school holiday period will be the first full day after the last day of the school term (whether a weekend or weekday) and the last day of the school holiday period will be the last full day (whether a weekend or a weekday or whether a pupil free day) before [X] is required to return to school.

Unless otherwise provided in these Orders or otherwise agreed between the parties, changeover occur at [X]’s school or at the [location omitted] in [K] at the commencement of [X]’s time with the mother, and at the [location omitted] at the conclusion of that time and the father will arrange for another adult to accompany [X] to changeover unless unavoidable.

In relation to telephone communication:

(a) [X] be at liberty to telephone the other party when not in that party’s care at any reasonable time and each party give him privacy to do so; and

(b) Each party be permitted to telephone [X] on one occasion each week when in the other party’s care.

10.

Each party notify the other party as soon as practicable if [X] has a medical emergency.

11.

Each party be restrained from consuming illicit drugs when [X] is in that party’s care.

12.

Each party be restrained from consuming alcohol in excess of the legal limit when [X] is in that party’s care.

13.

Each party be restrained from physically disciplining [X].

14.

Each party be restrained from making negative comments about the other party or members of that party’s household or family in [X]’s presence or hearing.

15.

By no later than mid-January 2009, each party make arrangements to attend individual counselling as soon as possible and in relation to such counselling:

(a) Each party advise the Independent Children’s Lawyer of the name of the counsellor and appointments made;

(b) The father ensure Ms M participates in counselling to the extent recommended by the counsellor; and

(c) The Independent Children’s Lawyer provide a copy of these Orders and Reasons for Judgment to each party’s counsellor.

16.

By no later than Monday 22 December 2008, the mother advise the father and the Independent Children’s Lawyer as to her address and contact details and thereafter each party keep the other informed as to his/her respective residential address, residential telephone number and mobile telephone number and advise the other within 48 hours of any change of address or telephone number.

17.

The father, as soon as confirmed, advise the mother of the name of the school [X] will attend in 2009 and the father authorise the school to provide to the mother copies of all school reports, school photographs, newsletters or notices of events involving parents, upon the mother’s request to the school and at the mother’s expense.

18.

Except as provided in Orders (16) and (17), each party limit their communication with each other to emergency situations regarding [X]’s welfare.

19.

Each party be restrained from asking [X] to convey messages to the other party.

20.

The father serve a sealed copy of these orders on the Principal of the school [X] attends in 2009, as soon as practicable but before the start of the 2009 school year.

21.

The Independent Children’s Lawyer forthwith explain these Orders to [X].

22.

The Independent Children’s Lawyer’s appointment continue for a period of 3 months.

23.

The father pay to the Independent Children’s Lawyer within 60 days the sum of $840 representing the outstanding balance of his contribution to the cost of the expert report.

24.

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 Annexure A and these particulars are included in these orders.

25.

All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.

26.

All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

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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