S and S - [2007] FMCAfam 272

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2007] FMCAfam 272

FAMILY LAW – Overseas travel with children- binding financial agreement – application under s.90K to set aside – particulars – manner in which proceedings should be conducted – parallels between ss.79 and 79A, and 90K and 90KA – set down as discrete issue.

Family Law Act 1975, ss.79, 79A, 90K, 90KA

Osborne & Osborne [2007] FMCAfam 206

Applicant:

Respondent:

File Number:

SYC1308 of 2007

Judgment of:

Altobelli FM

Hearing date:

20 April 2007

Date of Last Submission:

20 April 2007

Delivered at:

Sydney

Delivered on:

3 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr Schonell

Solicitors for the Applicant:

Broun Abrahams Burreket

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Barkus Edwards Doolan

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER BY CONSENT THAT:

The husband and wife have equal shared parental responsibility for:
(a)T S born 12 October 2001; and
(b)V S born 5 December 2005 (“the children”).
That the children live with the husband as follows:
(a)During school term each alternate weekend from 9.00am Saturday until the commencement of school on Monday morning;
(b)During school term in relation to the child T, for one additional night during the week, as agreed between the parties and failing agreement from after school on Wednesday until the commencement of school on Thursday;
(c)For one half of each school holiday at the conclusion of Term 1 and 3 as agreed between the parties and failing agreement for the first half of each period in even numbered years and the second half of each period in odd numbered years;
(d)For one week immediately prior to commencement of the new school year, with such period to end at 6.00pm on the day before school resumes.
That the Children shall live with the wife at all times they are not living with the husband pursuant to Order 2.
That the husband shall have sole parental responsibility for the children’s day to day welfare and development when they are living with him.
That the wife shall have sole responsibility for the children’s day to day care, welfare and development when they are living with her.
The wife provide to the husband, within 28 days, particulars of her claim under s.90K of the Family Law Act. The husband is entitled to request further particulars of the wife’s claim within 21 days of receipt of such particulars.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The wife is permitted to take the Children out of the Commonwealth of Australia to visit Switzerland for a period not exceeding 21 days.
The wife and the children are to return to Australia no later than Sunday 15^th July 2007.
During the time that the Children are outside of Australia in accordance with these orders any existing order that provides for the children to spend time with their father is suspended.
While the children are outside of Australia in accordance with these orders, the mother shall do…

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

AGLC: S and S [2007] FMCAfam 272
Case: [2007] FMCAfam 272
Decision Date: 3 May 2007

CaseChat Overview and Summary

The case involves a dispute between S (the husband) and S (the wife) regarding parenting arrangements for their two children, T and V. The case was heard in the Federal Circuit and Family Court of Australia. The primary concern was the allocation of parental responsibility and living arrangements for the children.

The court needed to decide several legal issues, including the division of parental responsibility between the husband and wife, the specific living arrangements for the children, and the implications of the wife's application to set aside a Binding Financial Agreement. Additionally, the court had to consider the wife's request to take the children overseas for a limited period.

The court ruled that the husband and wife have equal shared parental responsibility for the children. The living arrangements were set such that the children would live with the husband on alternate weekends during school terms, with additional arrangements during school holidays. The court also granted the wife permission for the children to travel to Switzerland for a limited period, provided they returned to Australia by a specified date. Furthermore, the wife was required to ensure that the children maintained communication with their father while abroad. The application to set aside the Binding Financial Agreement was adjourned for a later hearing.

Pending further orders, the court has made temporary arrangements for the children's living situation and communication with their father. The wife must provide particulars of her claim under section 90K of the Family Law Act and file relevant affidavits by specific deadlines. Both parties must submit documents outlining their reliance on affidavits and the orders they seek before the hearing. The parties are allowed to apply on seven days' notice.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER BY CONSENT THAT:

The husband and wife have equal shared parental responsibility for:

(a) T S born 12 October 2001; and

(b) V S born 5 December 2005 (“the children”).

That the children live with the husband as follows:

(a) During school term each alternate weekend from 9.00am Saturday until the commencement of school on Monday morning;

(b) During school term in relation to the child T, for one additional night during the week, as agreed between the parties and failing agreement from after school on Wednesday until the commencement of school on Thursday;

(c) For one half of each school holiday at the conclusion of Term 1 and 3 as agreed between the parties and failing agreement for the first half of each period in even numbered years and the second half of each period in odd numbered years;

(d) For one week immediately prior to commencement of the new school year, with such period to end at 6.00pm on the day before school resumes.

That the Children shall live with the wife at all times they are not living with the husband pursuant to Order 2.

That the husband shall have sole parental responsibility for the children’s day to day welfare and development when they are living with him.

That the wife shall have sole responsibility for the children’s day to day care, welfare and development when they are living with her.

The wife provide to the husband, within 28 days, particulars of her claim under s.90K of the Family Law Act. The husband is entitled to request further particulars of the wife’s claim within 21 days of receipt of such particulars.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The wife is permitted to take the Children out of the Commonwealth of Australia to visit Switzerland for a period not exceeding 21 days.

The wife and the children are to return to Australia no later than Sunday 15th July 2007.

During the time that the Children are outside of Australia in accordance with these orders any existing order that provides for the children to spend time with their father is suspended.

10.

While the children are outside of Australia in accordance with these orders, the mother shall do all things necessary to ensure that the Children communicate with their father by telephone, email or other age appropriate forms of communication not less than once each week.

11.

The wife’s application under s.90K of the Family Law Act to set aside the Binding Financial Agreement signed by the husband and the wife on 15 April 2002 is adjourned to 1 November 2007 for a hearing not exceeding two days to be heard together with any outstanding parenting matters.

12.

The wife file and serve all affidavits on which she intends to rely at hearing by no later than 4.00pm on 31 August 2007.

13.

The husband file and serve all affidavits on which he intends to rely at hearing by no later than 4.00pm on 28 September 2007.

14.

The Applicant pay the hearing fee or obtain a waiver of that fee at least by 28 September 2007.

15.

No later than two working days prior to hearing each party forward to my Associate a document setting out:

(a) The affidavits on which the party will rely at hearing;

(b) The orders sought at hearing

16.

The parties have liberty to apply on seven days notice.

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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