S & B - [2006] FMCAfam 447

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & B

[2006] FMCAfam 447

FAMILY LAW – Child aged 8 years and nine months – father lives in D – mother lives in K – child has lived with father since 2000 – mother seeks change of child’s living arrangements – best interests of child – primary consideration need to protect child from harm – whether failure to attend school regularly abuse or neglect – other indications of abuse and neglect considered – sexual abuse – whether unacceptable risk.

Family Law Act 1975 – ss.60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA, 65DAC, 65DAE

Re: K (1994) FLC 92-461
N & S & the Separate Representative (1996) FLC 92-655
M & M (1998) FLC 91-979
W and W [ Sexual Abuse allegations: unacceptable risk] [2005] FamCA 892
JG & BG (1994) 18 FamLR 255

Applicant:

D T S (S)

Respondent:

M A B

File Number:

DNM516 of 2005

Judgment of:

Brown FM

Hearing dates:

16 and 17 August 2006

Delivered at:

Delivered on:

31 August 2006

REPRESENTATION

Counsel for the Applicant:

Ms Davis

Solicitors for the Applicant:

Davis Norman Solicitors

Counsel for the Respondent:

Ms Terry

Solicitors for the Respondent:

Janet Terry Barrister & Solicitor

Counsel for the Independent Children’s Lawyer:

Ms Allan

Solicitors for the Independent Children’s Lawyer:

Mary M Allan

ORDERS

That all previous orders be discharged.
That the child D T S born 15 October 1997 live with the mother.
That the mother and father have equal shared parental responsibility for the said child.
That each parent individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development of the child on a day to day basis during periods when the child is in his or her care or is spending time with either of them.
That the child spend time with the father as follows:
(a)On each alternate weekend during school terms from after school on Friday until 4.00pm the following Sunday afternoon or 4.00pm the following Monday afternoon in the event that Monday is a public holiday;
(b)For half of the school holidays at times as agreed between the parties and failing agreement for the first half of each school holiday starting in 2006 and each even ending year thereafter and the second half of each school holiday in 2007 and each odd ending year thereafter;
(c)At any other times the parties may agree from time to time.
That the father communicate with the child by telephone on two occasions each week at times to be agreed between the parties and failing agreement to be 6.30pm on each Tuesday and Thursday.
That the mother be responsible for the deliver and collection of the child before and after each period of time he spends with the father and that the child be exchanged between the parties at the P Police Station.
That all other applications be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
D

DNM516 of 2005

D T S (S)

Applicant

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 S & B

Details

AGLC: S & B [2006] FMCAfam 447
Case: [2006] FMCAfam 447
Decision Date: 31 August 2006

CaseChat Overview and Summary

In the Family Court of Australia, the case of S & B involved the parents of a child, D T S, born on October 15, 1997. The parents were in dispute over the care and parenting arrangements for the child. The primary concern was determining the best living arrangements and decision-making responsibilities for the child, considering the welfare and development needs of D T S.

The legal issues before the court included the allocation of parental responsibility, the living arrangements for the child, and the frequency and conditions of the child's time with each parent. The court had to consider the principles outlined in the Family Law Act 1975, particularly the best interests of the child, and ensure that the arrangements promoted the child's health, development, and well-being. The court also had to decide on the logistics of the handovers and communication between the child and the non-residential parent.

The court found that the best arrangement for D T S was to live primarily with the mother, with the father having specified visitation rights. The court determined that both parents should have equal shared parental responsibility, allowing them to jointly make significant decisions about the child's welfare. The court set out detailed arrangements for the father's visitation, including specific times and conditions to ensure stability and predictability for the child. The court also mandated that the handovers occur at a designated police station and established a schedule for telephone communication between the child and the father. All other applications made by the parties were dismissed.

The final orders of the court included discharging all previous orders, specifying that D T S live with the mother, and setting out the detailed parenting arrangements and responsibilities for both parents. The court's decision aimed to provide a balanced and supportive environment for the child, recognising the importance of both parents in the child's life.

Orders

Orders of the court

That all previous orders be discharged.

That the child D T S born 15 October 1997 live with the mother.

That the mother and father have equal shared parental responsibility for the said child.

That each parent individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development of the child on a day to day basis during periods when the child is in his or her care or is spending time with either of them.

That the child spend time with the father as follows:

(a) On each alternate weekend during school terms from after school on Friday until 4.00pm the following Sunday afternoon or 4.00pm the following Monday afternoon in the event that Monday is a public holiday;

(b) For half of the school holidays at times as agreed between the parties and failing agreement for the first half of each school holiday starting in 2006 and each even ending year thereafter and the second half of each school holiday in 2007 and each odd ending year thereafter;

That the father communicate with the child by telephone on two occasions each week at times to be agreed between the parties and failing agreement to be 6.30pm on each Tuesday and Thursday.

That the mother be responsible for the deliver and collection of the child before and after each period of time he spends with the father and that the child be exchanged between the parties at the P Police Station.

That all other applications be dismissed.

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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