SIMPSON & BROCKMANN - [2008] FMCAfam 763

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIMPSON & BROCKMANN

[2008] FMCAfam 763

FAMILY LAW – Parenting – same sex relationship – children born of each partner – whether “parent” of that parties non biological child – equal shared parental responsibility – relocation.

Family Law Act 1975, ss.60CC, 61DA, 65DAA

H & J & Anor [2006] FMCAfam 514
Mulvany & Lane [2008] FMCAfam 473
B & B & Anor [2007] FMCAfam 246
PBC & LMC [2006] FMCAfam 469

Applicant:

MS SIMPSON

Respondent:

MS BROCKMANN

File Number:

LEC 311 of 2007

Judgment of:

Jarrett FM

Hearing dates:

30 August, 2007 (Lismore) & 27 June, 2008 (Brisbane)

Date of Last Submission:

27 June, 2008

Delivered at:

Brisbane

Delivered on:

18 July, 2008

REPRESENTATION

Counsel for the Applicant:

Ms Cotter-Moroz

Solicitors for the Applicant:

Trenches McKenzie Cox

Counsel for the Respondent:

Mr Baston

Solicitors for the Respondent:

Newhams Solicitor

ORDERS

That paragraph 4, 5, 6 and 7 of the orders made on 15 April, 2004 be discharged.
That the child [Y] spend time with [X] and Ms Simpson at their residence from time to time:
(a)on the third weekend of every second month, provided such time falls within a school term;
(b)for one week during the child’s school holidays in autumn, winter and spring in each year, being the first half in even numbered years and the second half in odd numbered years.
(c)for two weeks during the child’s school holidays in summer in each year, being the first two weeks in even numbered years and the last two weeks in odd numbered years.
That the child [X] spend time with [Y] and Ms Brockmann at their residence from time to time:
(a)on the third weekend of every second month, provided such time falls within a school term;
(b)for one week during the child’s school holidays in Autumn, winter and spring in each year, being the second half in even numbered years and the first half in odd numbered years.
(c)for two weeks during the child’s school holidays in summer in each year, being the first two weeks in odd numbered years and the last two weeks in even numbered years.
Order 2(a) hereof shall commence with the first occasion of time to be spent in the third week of August, 2008.
Order 2(b) hereof shall commence with the first occasion of time to be spent in the third week of September, 2008.
To facilitate the periods of time referred to in orders 2 and 3 hereof, the following shall occur:
(a)The periods of time shall be from Saturday morning until Sunday afternoon (and in the case of school holiday time, from the first Saturday of that period to the last Sunday in that period).
(b)That the applicant collect [X] and [Y] from and deliver [X] and [Y] to Coolangatta Airport and the respondent collect [X] and [Y] from and deliver [X] and [Y] to Sydney Airport.
(c)
That the respondent meet the costs of the air travel for all save

4 return flights…

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 SIMPSON & BROCKMANN

Details

AGLC: SIMPSON & BROCKMANN [2008] FMCAfam 763
Case: [2008] FMCAfam 763
Decision Date: 18 July, 2008

CaseChat Overview and Summary

Simpson and Brockmann were parties in a dispute regarding the parenting arrangements of their child, [X]. The case was heard in the Family Court of Australia. The primary focus of the case was to determine a suitable schedule for the child to spend time with both parents given their respective residences in different cities. This necessitated careful consideration of the child’s best interests, the logistics of travel between cities, and the impact of these arrangements on the child’s education and well-being.

The court was tasked with resolving several legal issues, including the establishment of a balanced and fair parenting schedule that would allow [X] to maintain meaningful relationships with both parents. This involved weighing the practical aspects of the parents' work schedules and living arrangements against the child's need for stability and routine. The court also had to consider the child's educational needs and the potential disruption caused by frequent travel.

In reaching its decision, the court emphasised the paramount importance of the child's best interests. It determined that a schedule which provided for regular and predictable periods of time with both parents was in the child's best interest. The court outlined a detailed schedule that included specific times during school terms and school holidays, ensuring that the child would have consistent periods of time with each parent. Additionally, the court addressed logistical issues such as travel arrangements and costs, making specific orders to ensure these aspects were managed fairly and efficiently. The court also discharged certain previous orders to align with the new arrangements.

The final orders included specific visitation schedules for the child to spend time with each parent, starting from particular dates in 2008, and detailed logistics for travel between the parents' residences. The court also addressed the financial aspects of air travel, assigning costs between the parties in a manner intended to be equitable and manageable. All other pending applications were dismissed.

Orders

Orders of the court

That paragraph 4, 5, 6 and 7 of the orders made on 15 April, 2004 be discharged.

That the child [Y] spend time with [X] and Ms Simpson at their residence from time to time:

(a) on the third weekend of every second month, provided such time falls within a school term;

(b) for one week during the child’s school holidays in autumn, winter and spring in each year, being the first half in even numbered years and the second half in odd numbered years.

(c) for two weeks during the child’s school holidays in summer in each year, being the first two weeks in even numbered years and the last two weeks in odd numbered years.

That the child [X] spend time with [Y] and Ms Brockmann at their residence from time to time:

(a) on the third weekend of every second month, provided such time falls within a school term;

(b) for one week during the child’s school holidays in Autumn, winter and spring in each year, being the second half in even numbered years and the first half in odd numbered years.

(c) for two weeks during the child’s school holidays in summer in each year, being the first two weeks in odd numbered years and the last two weeks in even numbered years.

Order 2(a) hereof shall commence with the first occasion of time to be spent in the third week of August, 2008.

Order 2(b) hereof shall commence with the first occasion of time to be spent in the third week of September, 2008.

To facilitate the periods of time referred to in orders 2 and 3 hereof, the following shall occur:

(a) The periods of time shall be from Saturday morning until Sunday afternoon (and in the case of school holiday time, from the first Saturday of that period to the last Sunday in that period).

(b) That the applicant collect [X] and [Y] from and deliver [X] and [Y] to Coolangatta Airport and the respondent collect [X] and [Y] from and deliver [X] and [Y] to Sydney Airport.

(c)

That the respondent meet the costs of the air travel for all save

4 return flights for [Y] to Coolangatta from Sydney each year for which the applicant shall pay.

(d) That for the first two visits of [X] to Sydney that the respondent pay for [X] to be accompanied by the applicant or respondent for the plane travel at the election of the applicant.

All other outstanding applications are 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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