Rosa and Rosa - [2008] FMCAfam 427

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROSA & ROSA

[2008] FMCAfam 427

FAMILY LAW – Parenting – equal shared parental responsibility – live with and spend time with – relocation.

Family Law Act 1975 (Cth), ss.60B, 60CA, 65DAA, 60CC(2) & (3)

Applicant:

MR ROSA

Respondent:

MS ROSA

File number:

TVC1196 of 2007

Judgment of:

Coker FM

Hearing dates:

13, 14 and 20 March 2008

Date of last submission:

1 April 2008

Delivered at:

Townsville

Delivered on:

1 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr Betts

Solicitors for the Applicant:

Rod Madsen

Counsel for the Respondent:

Mr Jackson

Solicitors for the Respondent:

Antwan Lawyers

ORDERS

The Father and the Mother have equal shared parental responsibility for the major long term issues of the child, M born in 2002, including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
The said child live with the Father and the Mother on an alternate weekly basis in accordance with existing arrangements at times agreed between the parents with handovers to occur as agreed..
The parent with whom the child is not living communicate by telephone with the child when in the other parent’s care on the following basis:
(a)each Tuesday, Thursday and Sunday;
(b)during such times as may be agreed between the parties having regard to the child’s other commitments;
(c)in a quiet and private environment;
(d)with the parent with whom the child is living to make the child available for such telephone communications.
The child spend time with and communicate with each of the parents on:
(a)the child’s birthday;
(b)with the Mother on Mother’s Day;
(c)with the Father on Father’s Day;
(d)With both parents on Christmas day should they both be in the same town;
(e)Should the Mother be away from [M], North West Qld at Christmas in 2008, then the Mother spend time with the child and the Father communicate with the child by telephone.
Each parent spend block time with the child for holidays as may be agreed for periods of up to 6 weeks each year and that the shared care arrangements be suspended during such holiday periods.
Should either parent be unable to resolve arrangements in relation to the child, then they attend mediation with a mediator or upon the Family Relationship Centre at their joint expense to resolve that issue.
In the event that the Mother is not living in [M], North West Qld, then the child live with the Father and the Mother 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 Rosa and Rosa

Details

AGLC: Rosa and Rosa [2008] FMCAfam 427
Case: [2008] FMCAfam 427
Decision Date: 1 April 2008

CaseChat Overview and Summary

The case of Rosa and Rosa involved a dispute between the parents, referred to as the Father and the Mother, concerning the shared parental responsibility of their child, M, born in 2002. The primary issues at hand included the allocation of major long-term decisions regarding the child's education, religious and cultural upbringing, health, name, and living arrangements, as well as the scheduling of visitation and communication between the child and each parent. The matter was heard in the Family Court of Australia.

The legal issues before the court were whether the parents should have equal shared parental responsibility for significant long-term decisions and how such responsibility should be exercised in practice. The court was also required to determine the living arrangements for the child, including the frequency and manner of communication between the child and the non-resident parent, and the schedule for holidays and special occasions. Furthermore, the court had to consider the mechanisms for resolving any disputes that might arise in the future.

The court found that both parents should have equal shared parental responsibility for the major long-term issues concerning the child. It was determined that this responsibility should be exercised through consultation between the parents, ensuring they inform each other about decisions, consult on agreed terms, and make a genuine effort to reach a joint decision. The child was to live on an alternate weekly basis with each parent, with detailed arrangements for communication and visitation set out in the orders. The court also directed that the matter be listed for further hearings concerning financial issues and compliance checks.

Additionally, the court ordered that the matter be listed for a further hearing on financial issues and a compliance check, with provisions for remote attendance by phone link. This comprehensive set of orders aimed to balance the needs and rights of both parents while prioritising the welfare and best interests of the child.

Orders

Orders of the court

The Father and the Mother have equal shared parental responsibility for the major long term issues of the child, M born in 2002, including but not limited to:

(a) a child’s education (both current and future);

(b) a child’s religious and cultural upbringing;

(d) a child’s name;

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree;

The said child live with the Father and the Mother on an alternate weekly basis in accordance with existing arrangements at times agreed between the parents with handovers to occur as agreed..

The parent with whom the child is not living communicate by telephone with the child when in the other parent’s care on the following basis:

(a) each Tuesday, Thursday and Sunday;

(b) during such times as may be agreed between the parties having regard to the child’s other commitments;

(d) with the parent with whom the child is living to make the child available for such telephone communications.

The child spend time with and communicate with each of the parents on:

(a) the child’s birthday;

(b) with the Mother on Mother’s Day;

(d) With both parents on Christmas day should they both be in the same town;

(e) Should the Mother be away from [M], North West Qld at Christmas in 2008, then the Mother spend time with the child and the Father communicate with the child by telephone.

Each parent spend block time with the child for holidays as may be agreed for periods of up to 6 weeks each year and that the shared care arrangements be suspended during such holiday periods.

Should either parent be unable to resolve arrangements in relation to the child, then they attend mediation with a mediator or upon the Family Relationship Centre at their joint expense to resolve that issue.

In the event that the Mother is not living in [M], North West Qld, then the child live with the Father and the Mother spend time with and communicate with the child at all reasonable times as may be able to be agreed and facilitated.

IT IS FURTHER DIRECTED THAT:

The matter be listed for a further 1 day hearing of financial issues commencing at 10.00am on 5 June 2008 at Townsville.

10.

The application be listed for a compliance check at 9.30am on 29 May 2008 at Townsville, with leave granted to the parties to attend by phone link.

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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