T and O - [2006] FMCAfam 709

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T & O

[2006] FMCAfam 709

FAMILY LAW – Planned relocation by mother of children aged 9 and 8 from Darwin to M – father seeks shared care arrangement in Darwin and to restrain mother from removing children from Darwin – presumption of equal shared parental responsibility – whether children can have meaningful relationship with father in event or relocation – consideration of concept of freedom of movement – evaluation of parties’ competing proposals – consideration of father moving to maintain relationship with children.

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

U & U [2002] FLC 93-112
B v B [2006] FamCA 1207
AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A: Relocation Approach (2000) FLC 93-035
Bolitho & Cohen (2005) FLC 92-224
B v B: Family Law Reform Act (1997) FLC 92-755
D and S V (2003) FLC 93-137
Fragomeli & Fragomeli (1993) FLC 92-393

Applicant:

S C T

Respondent:

N R O

File number:

DNM453 of 2005

Judgment of:

Brown FM

Hearing dates:

6 and 7 December 2006

Delivered at:

Darwin

Delivered on:

22 December 2006

REPRESENTATION

Counsel for the Applicant:

Ms Bowen

Solicitors for the Applicant:

Bowen Lawyers

Counsel for the Respondent:

Ms Farmer

Solicitors for the Respondent:

Withnalls

ORDERS

The parties have equal responsibility for making decision regarding major long term issues pertaining to the children of the relationship J A T born ** January **** and M C T born * August **** (hereinafter referred to as “the children”).
From after 22 January 2007 the mother be permitted to live with the children in M in the State of Q and thereafter the children live with the mother.
In the event that the father does not elect to move to M the children spend time with the father as follows:
(a)For the whole of the mid year (June/July) Q school holiday in 2007 and each such mid year holiday thereafter;
(b)For 4 continuous weeks of the Q December/January school holiday in each year so that such 4 week period includes Christmas Day in 2007 and each alternate year thereafter but does not include Christmas Day in 2008 and each alternate year thereafter;
(c)For either the whole of the March/April Q school holiday in each year or the whole of the September Q school holiday in each year provided the father gives 28 days notice in writing in respect of the holiday he proposes to spend with the children and is responsible for the payment of all transport costs in respect of the children spending such period with him;
(d)At any other times as may be agreed between the parties from time to time.
The mother bear the costs of the air travel necessary for the children to spend time with the father pursuant to orders 3(a) and (b) hereof with the mother to be responsible for booking and paying for the cheapest available economy airfare for the children between M,…

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: T and O [2006] FMCAfam 709
Case: [2006] FMCAfam 709
Decision Date: 22 December 2006

CaseChat Overview and Summary

In the Family Court of Australia, the case of T and O involved a dispute between the parents, the father, and the mother, regarding the care and custody of their two children, J A T and M C T. The court was tasked with determining the living arrangements and visitation rights for the children following the parents' separation. The primary concern was the allocation of decision-making responsibilities and the establishment of a suitable parenting schedule that balanced the needs and best interests of the children.

The legal issues addressed by the court included the allocation of parental responsibilities concerning major long-term issues for the children, the determination of the primary residence, and the formulation of a detailed parenting schedule. The court needed to consider the welfare and best interests of the children, the preferences of the children themselves if they were of sufficient age and understanding, and the capacity of each parent to provide for the children's physical, emotional, and educational needs.

The court reasoned that an equal sharing of responsibilities for major long-term issues was in the best interest of the children, given both parents' willingness and ability to contribute. It was decided that the mother would reside with the children in M in the State of Q, with specific visitation rights granted to the father. The schedule included provisions for the father to have the children during certain school holidays and specified times during school terms. The court also mandated that the mother bear the costs of air travel for certain visitation periods and required both parents to maintain communication and provide regular updates regarding the children's health and whereabouts. Additionally, the court imposed restrictions on both parents to prevent any derogatory comments about each other in the presence of the children.

The final orders included detailed provisions for the shared responsibilities of the parents, specific visitation schedules, communication requirements, and restrictions on derogatory conduct. The court dismissed all other outstanding applications.

Orders

Orders of the court

The parties have equal responsibility for making decision regarding major long term issues pertaining to the children of the relationship J A T born ** January **** and M C T born * August **** (hereinafter referred to as “the children”).

From after 22 January 2007 the mother be permitted to live with the children in M in the State of Q and thereafter the children live with the mother.

In the event that the father does not elect to move to M the children spend time with the father as follows:

(a) For the whole of the mid year (June/July) Q school holiday in 2007 and each such mid year holiday thereafter;

(b) For 4 continuous weeks of the Q December/January school holiday in each year so that such 4 week period includes Christmas Day in 2007 and each alternate year thereafter but does not include Christmas Day in 2008 and each alternate year thereafter;

(c) For either the whole of the March/April Q school holiday in each year or the whole of the September Q school holiday in each year provided the father gives 28 days notice in writing in respect of the holiday he proposes to spend with the children and is responsible for the payment of all transport costs in respect of the children spending such period with him;

(d) At any other times as may be agreed between the parties from time to time.

The mother bear the costs of the air travel necessary for the children to spend time with the father pursuant to orders 3(a) and (b) hereof with the mother to be responsible for booking and paying for the cheapest available economy airfare for the children between M, Darwin and return 28 days prior to the time scheduled for the travel and advising the father in writing of the flight details, including flight numbers and times of arrival and departure.

In the event that the father elects to move to live permanently in M during 2007 the children spend time with him as follows:

(a) During school terms in alternate weeks from after school on Thursday until the commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday);

(b) For half of all school holiday periods, the halves to be agreed between the parties and failing agreement to be the first half in years ending with an odd number and the second half in years ending with an even number;

(c) On each of the children’s birthdays, in the event that the children are not otherwise with the father, at times to be agreed between the parties and failing agreement to be from 3.30pm until 6.30pm;

(d) On Father’s Day should the children not otherwise be with the father, from 9.00am to 6.00pm on Father’s Day;

(e) In the event that Mother’s Day falls on a day on which the children would be otherwise with the father pursuant to these orders then the father shall return the children to the mother at 9.00am on Mother’s Day;

(f) At any other times as is agreed to between the parties.

In the event that both parties are at the same location at Christmas the party who is not otherwise entitled to spend time with the children at Christmas pursuant to these orders shall spend time with the children from 6.00pm on 25 December to 6.00pm on 26 December.

The father communicate with the children by telephone on occasions when the children are not in his care on each Tuesday and Saturday between the hours of 6.00pm and 7.00pm at the time zone at which the children are located.

The mother communicate with the children by telephone on occasions when the children are not in her care on each Tuesday and Saturday between the hours of 6.00pm and 7.00pm at the time zone at which the children are located.

The parties provide to the other at all times their respective residential and postal addresses and their electronic contact details including contact telephone numbers, both mobile, home landline and work landline and email addresses and inform the other of any changes of these details within 2 days of such change.

10.

If either party intends to travel away from their usual place of residence with the children during any holiday period they provide the other with an itinerary setting details of departure and return and the address and telephone number of the place where the children will be staying predominantly during such holiday.

11.

The mother and father each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.

12.

The mother authorise the principal of each school attended by the children from time to time to send to the father:

(a) A photocopy of each school report concerning each child;

(b) An order form for each school photograph of each child.

13.

The father be at liberty to attend or visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.

14.

The father and mother be restrained and an injunction be granted restraining them from denigrating the other, the other parent’s partner or the other parent’s family or permitting any other person in their presence to denigrate the other parent, the other parent’s partner, or the other parent’s family to or in the presence of the children.

15.

All outstanding applications be otherwise 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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