Schroeder & Raleigh & Anor - [2012] FMCAfam 834

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCHROEDER & RALEIGH & ANOR

[2012] FMCAfam 834

FAMILY LAW – Parenting – application by paternal grandmother to spend time with grandchildren – application opposed by respondent mother – relationship between adults highly conflicted – children aged 8 years and 4 years – mother raised concern in relation to the application being an attempt for the father to gain more time with the children – mother concerned grandmother is attempting to undermine the mother's parenting of the children – orders made allowing paternal grandmother to spend time with children each alternate Saturday when the children are otherwise spending time with the father, during the school holidays and for Christmas and birthdays.

Family Law Act 1975, ss.60CA, 60CC

Potts & Bims [2007] FamCA 394
Simpson & Brockman [2009] 43 FamLR 32

Applicant:

MS SCHROEDER

First Respondent:

MS RALEIGH

Second Respondent:

MR P

File Number:

MLC 8892 of 2011

Judgment of:

Bender FM

Hearing dates:

1 August 2012 & 2 August 2012

Date of Last Submission:

2 August 2012

Delivered at:

Bendigo

Delivered on:

3 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr Baker

Solicitors for the Applicant:

Peter Baker & Associates

Counsel for the First Respondent:

Mr Middlemis

Solicitors for the First Respondent:

J A Middlemis

Counsel for the Second Respondent:

In Person

Solicitors for the Second Respondent:

In Person

Counsel for the Independent Children’s Lawyer:

Mr McLeod

Solicitors for the Independent Children’s Lawyer:

Lampe Family Lawyers

UPON THE UNDERTAKING of Ms Schroeder that during any time the children Y born (omitted) 2003 (“Y”) and X born (omitted) 2008 (“X”) spend with her, she will ensure the father Mr P is not in the presence or vicinity of Y and/or X.

UPON THE UNDERTAKING of Mr P that he will not be present at any time that the paternal grandmother spends with the children Y born (omitted) 2003 and X born (omitted) 2008.

ORDERS

The applicant paternal grandmother shall spend time and communicate with the children Y born (omitted) 2003 (“Y”) and X born (omitted) 2008 (“X”) as follows:
(a)each alternate weekend from 10.00am to 4.00pm Saturday to coincide with the time the father is to spend with Y and X pursuant to the orders of this Court made 24 May 2011 regardless of whether the father exercises such time with Y and X;
(b)from 8.30am to 5.30pm on the first Friday of the third term school holidays in 2012 and the first term school holidays in 2013;
(c)from 8.30am to 5.30pm on two Fridays in the 2012/2013 long summer vacation on such Fridays as are nominated by the mother and the mother shall give the paternal grandmother 72 hours prior notice of the nominated Fridays;
(d)for two consecutive days and one night in each of the school holiday periods commencing in the second term holidays in 2013 as agreed between the mother and the paternal grandmother and failing agreement from 8.30am Friday to 4.00pm Saturday on the second weekend of the term holidays and…

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 Schroeder & Raleigh & Anor

Details

AGLC: Schroeder & Raleigh & Anor [2012] FMCAfam 834
Case: [2012] FMCAfam 834
Decision Date: 3 August 2012

CaseChat Overview and Summary

In the case of Schroeder & Raleigh & Anor, the applicants were the paternal grandmothers of two children, Y and X. The primary concern of the grandmothers was to establish a visitation and communication schedule with the children, which was opposed by the children's mother. The Family Court of Australia was tasked with determining a suitable arrangement for the grandmothers to spend time with the children, balancing the rights of the children, the mother, and the grandmothers.

The court was required to address several key legal issues, including the extent to which the grandmothers should be permitted to spend time with the children, the specific times and conditions under which this visitation should occur, and the need to ensure that the children's primary caregivers' rights were protected. The court also had to consider the impact of the proposed arrangements on the children's welfare and stability, as well as the importance of maintaining a consistent routine for the children.

In reaching its decision, the court emphasised the paramount consideration of the children's best interests. The court acknowledged the significant bond between the children and their paternal grandmothers, but also recognised the mother's role as the primary caregiver. The court detailed a comprehensive schedule for the grandmothers' visitation, taking into account the father's existing visitation rights and ensuring that the children's routine was minimally disrupted. The court also stipulated that the grandmothers must not facilitate contact between the children and the father during their visitation time, unless otherwise agreed. Furthermore, the court mandated that the mother must provide make-up time if the children are unable to spend time with the grandmothers as ordered.

The final orders granted the paternal grandmothers specific visitation times with the children, including alternate weekend visits, school holiday periods, and special occasions such as birthdays. The court also allowed the grandmothers to attend school and pre-school events where grandparents are invited. These orders were designed to balance the rights and needs of all parties involved, ensuring the children's welfare and stability were prioritised.

Orders

Orders of the court

The applicant paternal grandmother shall spend time and communicate with the children Y born (omitted) 2003 (“Y”) and X born (omitted) 2008 (“X”) as follows:

(a) each alternate weekend from 10.00am to 4.00pm Saturday to coincide with the time the father is to spend with Y and X pursuant to the orders of this Court made 24 May 2011 regardless of whether the father exercises such time with Y and X;

(b) from 8.30am to 5.30pm on the first Friday of the third term school holidays in 2012 and the first term school holidays in 2013;

(c) from 8.30am to 5.30pm on two Fridays in the 2012/2013 long summer vacation on such Fridays as are nominated by the mother and the mother shall give the paternal grandmother 72 hours prior notice of the nominated Fridays;

(d) for two consecutive days and one night in each of the school holiday periods commencing in the second term holidays in 2013 as agreed between the mother and the paternal grandmother and failing agreement from 8.30am Friday to 4.00pm Saturday on the second weekend of the term holidays and as nominated by the mother in the long summer holidays and the mother shall give the paternal grandmother 72 hours prior notice of the nominated weekend;

(e) for two hours at agreed times on the day before each of Y and X’s birthdays, on Christmas Eve and on the paternal grandmother’s birthday and failing agreement from 3.30pm to 5.30pm on a school day and from 10.00am to 12.00 noon on a non-school day; and

(f) as otherwise agreed between the parties.

Unless otherwise agreed, changeover for the time Y and X spend with the paternal grandmother pursuant to these orders shall occur at the (omitted) Centre when available and otherwise at the (omitted) in (omitted)

If Y and X are unable or unavailable to spend time with the paternal grandmother pursuant to these orders, the mother shall provide make up time at the same time in the week following the missed time.

The paternal grandmother may attend any of Y or X’s school or pre-school events which grandparents are invited to attend and the mother shall notify the paternal grandmother of such events no less than 72 hours prior to those events taking place.

Save for the time provided for in order 1(a) herein, the paternal grandmother shall ensure that Y and X do not come into contact with the father during any time they are spending with the paternal grandmother pursuant to these orders.

AND THE COURT NOTES THAT:

A. Nothing in these orders prohibits the paternal grandmother spending time with Y and X during any time Y and X are spending with the father pursuant to any future orders made pursuant to the Family Law Act 1975.

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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