Sharp and Daley - [2008] FMCAfam 568

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHARP & DALEY

[2008] FMCAfam 568

FAMILY LAW – Re-location – six year old child has not spent time with the father for two years prior to trial – relevant legal principles.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 65DAC, 68B, 114(3)
The Constitution, s.92

Mills & Watson [2008] FMCAfam 2
Sampson & Hartnett (No.10) [2007] FamCA 1365
AMS & AIF (1999) FLC 92-852
A v A: Re-location Approach (2000) FLC 93-035
U v U (2002) FLC 93-112
Bolito & Cohen (2005) FLC 93-224
BJZ & KEM [2007] FMCAfam 86
H & H [2007] FMCAfam 27
S & B [2006] FMCAfam 447

Applicant:

MR SHARP

Respondent:

MS DALEY

File Number:

ADC 1069 of 2007

Judgment of:

Lindsay FM

Hearing dates:

20 & 21 September 2007

Date of Last Submission:

20 November 2007 (via written submission)

Delivered at:

Adelaide

Delivered on:

6 June 2008

REPRESENTATION

Counsel for the Applicant:

Mr Hicks

Solicitors for the Applicant:

Mead Robson Steele

Counsel for the Respondent:

Ms Lewis

Solicitors for the Respondent:

Robinson & Mason

ORDERS

The child [A] born in 2002 do live with the mother.
The mother do have the sole parental responsibility for the long-term care, welfare and development of the said child.
The application of the father for orders by way of injunction restraining the mother from changing the principal place of address of the said child from Adelaide or without notice to him be and the same is hereby refused.
The parties do all such things as may be reasonably required to facilitate the said child spending time with the father as follows:
(a)on one (1) day of a weekend on four (4) consecutive weekends for periods of not less than two (2) nor more than three (3) hours at the [N] Children’s Contact Service under the supervision of an officer of that service, the dates and times of such time-spent to be as specified in writing by the management of such service, being the earliest dates reasonably available to the parties following upon the enrolment of the parties in the said service, with the parties and each of them to forthwith do all such things as may be reasonably required to facilitate their enrolment in such service and to share equally all costs arising from their enrolment and attendance at such service;
(b)until the said child shall have attained the age of eight (8) years, in [X], Western Australia for one (1) period in each of the said child’s school holidays following upon the said child’s re-location to [X], being three (3) consecutive days between the hours of 10:00am and 4:00pm on such days, the time-spent on the first day of each such period to be taken in the presence of the nominee of the mother, not including Christmas Day, but otherwise on days specified in writing by the father to the mother not less than forty-two (42) days prior to the first day of each such period;
(c)thereafter and until…

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 Sharp and Daley

Details

AGLC: Sharp and Daley [2008] FMCAfam 568
Case: [2008] FMCAfam 568
Decision Date: 6 June 2008

CaseChat Overview and Summary

Sharp and Daley was a case involving the parents of a child born in 2002. The dispute centred around the child's primary residence, the allocation of parental responsibilities, and the arrangements for the child to spend time with the father. The Family Court of Australia was tasked with resolving these issues.

The central legal issues that the court had to decide were whether the child should live primarily with the mother, whether the father should have sole parental responsibility, and the specifics of the contact arrangements between the child and the father. Additionally, the court had to consider the father's application for an injunction to prevent the mother from relocating the child without his consent and determine the conditions for the father's supervised contact with the child.

The court determined that the child should reside with the mother, granting her sole parental responsibility for the long-term care, welfare, and development of the child. The court refused the father's application for an injunction against the mother relocating, as it was not in the child's best interests. The court outlined detailed contact arrangements between the father and the child, including supervised contact through a children's contact service and specific periods during school holidays, with provisions for the father to provide drug testing certificates and for the child to communicate with the father via phone or webcam. The court also stipulated that the parties should share the costs of the children's contact service and the child's air travel when necessary.

The court's final orders specified the child's residence with the mother, the mother's sole parental responsibility, and the detailed contact arrangements with the father, including conditions for drug testing and communication. The court also granted liberty to both parties to apply for further orders under certain circumstances.

Orders

Orders of the court

The child [A] born in 2002 do live with the mother.

The mother do have the sole parental responsibility for the long-term care, welfare and development of the said child.

The application of the father for orders by way of injunction restraining the mother from changing the principal place of address of the said child from Adelaide or without notice to him be and the same is hereby refused.

The parties do all such things as may be reasonably required to facilitate the said child spending time with the father as follows:

(a) on one (1) day of a weekend on four (4) consecutive weekends for periods of not less than two (2) nor more than three (3) hours at the [N] Children’s Contact Service under the supervision of an officer of that service, the dates and times of such time-spent to be as specified in writing by the management of such service, being the earliest dates reasonably available to the parties following upon the enrolment of the parties in the said service, with the parties and each of them to forthwith do all such things as may be reasonably required to facilitate their enrolment in such service and to share equally all costs arising from their enrolment and attendance at such service;

(b) until the said child shall have attained the age of eight (8) years, in [X], Western Australia for one (1) period in each of the said child’s school holidays following upon the said child’s re-location to [X], being three (3) consecutive days between the hours of 10:00am and 4:00pm on such days, the time-spent on the first day of each such period to be taken in the presence of the nominee of the mother, not including Christmas Day, but otherwise on days specified in writing by the father to the mother not less than forty-two (42) days prior to the first day of each such period;

(c) thereafter and until the said child shall have attained the age of nine (9) years, in [X], Western Australia for one (1) period of three (3) days in each of the said child’s school holidays being from 10:00am on the first day to 6:00pm on the third day, not including Christmas Day, but otherwise on days specified in writing by the father to the mother not less than forty-two (42) days prior to the first day of each such period; and

(d) thereafter, and until the said child shall have attained the age of ten (1) years, in Adelaide for a period of one (1) week in each of the said child’s school holidays following upon the conclusion of Term 1 and Term 3 and for one (1) week in the said child’s Christmas school holidays, not including Christmas Day, but otherwise on days specified in writing by the father to the mother not less than forty-two (42) days prior to the first day of each such period, with the costs of the said child’s air travel to and from Adelaide to be shared equally by the parties, with liberty to apply granted to both parties from sixty (6) days prior to the said child having attained the age of nine (9) years as to whether such air travel should be un-accompanied and otherwise as to the terms and conditions of such air travel.

Drug Testing

(a) The exercise by the father of all time-spent pursuant to paragraph (4) hereof shall be conditional upon him providing on the two occasions specified in sub-paragraph (e) hereof to the mother a certificate from a qualified medical practitioner, or their authorised delegate, evidencing the absence of any trace of any class of the following illicit substances in a sample of his urine tested so as to determine the presence of such substances, namely:

(i) benzodiazepines;

(ii) opiates;

(iii) methadone;

(iv) amphetamine;

(v) cannabinoids;

(vi) barbiturates; and

(vii) cocaine.

(b) The provision by the father of each urine sample tested for the purposes of the provision of the certificate shall be personally supervised and observed by a qualified medical practitioner, or their authorised delegate, in accordance with the chain of custody protocol specified in AS/NZ4308:2001.

(d) Each certificate shall be provided within (7) days of testing.

(e) The two occasions referred to in sub-paragraph (a) hereof are:

(i) the giving of written notification by the father to the mother for each period of time-spent pursuant to paragraph (4) hereof; and

(ii) a date not more than seven (7) days prior to the first day of each such period of time-spent.

There be liberty to the father to apply for time-spent orders in the event that the mother ceases to have her principal place of residence at [X] in Western Australia.

There be liberty to the mother to apply for discharge or variation of the time-spent orders provided in paragraph (4) hereof in the event that any of the periods of time-spent described in that paragraph are not exercised by the father other than by reason of the mother’s failure to comply with such orders.

Each party do keep the other party informed at all times of their current postal and residential address and, in any event, inform the other in writing within fourteen (14) days of any change to such postal or residential address.

The mother do all such things as may be reasonably required to authorise the officers of any school at which the said child shall attend to provide to the father such information in relation to the said child’s schooling as he may request from time to time.

10.

The mother do keep the father informed at all times of the name and address of the school at which the said child shall attend from time to time and, in any event, inform the father within fourteen (14) days of any such change of school.

11.

The mother do all such things as may be reasonably required to facilitate the said child communicating by telephone with the father on the fourth Sunday of each month at 6:00pm (Central Standard Time), with the mother to telephone the father at his land-line telephone number at such times, such telephone call not to exceed fifteen (15) minutes in length and with the mother to bear the costs associated with such telephone communication.

12.

The father do forthwith provide the mother in writing the details of his land-line telephone number and advise the mother in writing within fourteen (14) days in the event of any change in such telephone number.

13.

In the event that the father shall have acquired and installed at his home such equipment as will facilitate his communication with the said child by way of visual internet communication (“web-cam”) and shall have advised the mother in writing of his having acquired such equipment then and in that event, the mother shall within twenty-eight (28) days of receiving such advice in writing, acquire and install such equipment at her home as will enable the said child to communicate with the father by web-cam and thereafter the mother shall do all such things as are necessary to ensure that the said child communicates with the father by web-cam at the times specified for telephone communication in paragraph (11) hereof in lieu of such telephone communication but otherwise on the same terms and conditions of such telephone communication.

14.

All applications do otherwise stand 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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