Russell & Close

[1993] FamCA 62

[1993] FamCA 62

BETWEEN:R

APPELLANT/HUSBAND

ANDC

RESPONDENT/WIFE

Appeal No SA45 OF 1992

No. AD449 OF 1988

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA

FOGARTY, BAKER AND LINDENMAYER JJ

HRNG

ADELAIDE, 31 March 1993

DATE 25:6:1993

Mr D Haines, instructed by Greg McGee, Solicitor, appeared on behalf of the

Appellant Husband.

The Respondent Wife appeared in person.

Miss Ross, instructed by Legal Services Commission, appeared on behalf of

the Separate Representative.

ORDER

Appeal dismissed with costs.

JUDGE1

FOGARTY, BAKER AND LINDENMAYER JJThis is an appeal from orders made by

Justice Bulbeck on 9 October 1992, defining access by the husband to the two

children of the marriage, M and A. The relevant orders were:

"3. That the wife do give and the husband do have access to

two infant children of the marriage now dissolved on alternate

Saturdays from 9.00 am to 6.00 pm on and from the 10th day of

October 1992 and from 9.00 am to 6.00 pm on alternate Sundays on

and from the 11th day of October 1992.

4. That the wife do give and the husband do have access to the

said children during each school holiday period between the hours

of 9.00 am and 6.00 pm on such days as agreed between the parties

to the intent that the total access does not exceed one half of

each such school holiday period and in default of agreement on

such dates to the same intent as may be ordered by the Court.

5. That the parties do attend to effect the delivery and

return of the said children at the commencement and conclusion of

all access periods at the police station at Suburb G in the State

of South Australia unless the parties shall have agreed in

advance in writing to effect such delivery and return elsewhere."

HISTORY

2.The husband was born in the UK in 1948 and the wife was born in Country H

in 1955. The parties were married in Country H in 1982. The parties

moved to Australia shortly thereafter and separated in January 1988. There

were two children born to the union, M in 1984 and A in 1986.

3.Following the separation the parties agreed that the husband have access

to the two children each Saturday afternoon and in April 1988 the access

arrangement was varied, whereby the husband exercised access each weekend from

10.00a.m. on Saturdays until 1.00 pm on Sundays. In April 1989, access was

again altered by agreement of the parties, as a result of which the husband

exercised access on alternate weekends from 10.00 am on Saturday until 1.00 pm

on Sunday.

4.In October 1988 the husband gave an undertaking, without admissions, that

he would not, during access or otherwise, give alcohol to the children, swear

at them or at the wife, or attend unannounced at her premises.

5.The husband continued to exercise alternate overnight weekend access

until, on 27 September 1991, after an argument between the parties concerning

the husband's smoking in the presence…