T-E and D - [2001] FMCAfam 71

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T-E & D [2001] FMCA fam 71

FAMILY LAW – Parenting orders – Specific issues orders – Injunction in relation to the welfare of a child – Child’s surname.

Applicant:

T-E

Respondent:

File No:

ZP 2121 of 2001

Delivered on:

27 June 2001

Delivered at:

Parramatta

Hearing Dates:

22 & 23 June 2001

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Shepherd

Solicitors for the Applicant:

Heazlewoods, Level 4, 3 Carlingford Road, Epping 2121. DX 4411 Epping.

Counsel for the Respondent:

Mr Johnston

Solicitors for the Respondent:

Philip Beazley Solicitor, Suite 920, 185 Elizabeth Street, Sydney 2000

ORDERS BY CONSENT

That the father have contact with the children of the relationship, C born 3 August 1990 and S born 9 December 1993 (“the children”) for block periods of three weeks each December/January school holidays and such contact to fall in the last three weeks of those holidays upon condition that the father return the children to the mother no later than the Friday immediately prior to the commencement of school.

IT IS FURTHER ORDERED

That the father ensure that the children attend “Keane Kids”, any Australian Youth Choir and National Dance commitments that occur during periods when the children are with him subject to:
1.A child being ill;
2.The children having competing commitments and the father determining that the competing commitments should have priority;
3.The father determining that the interests of another child or family member required that the activity be foregone.
In the event that the father is unable to transport a child or the children to one of the activities identified in Order (2), the father is to notify the mother as soon as practicable that he cannot do so and request that the mother transport the child or children to the activity.
That during periods of holiday contact, the father is to cause the children to telephone the mother no less than once a week for each week of the holidays.
That both parties do all things necessary, including executing all relevant documents, to cause the children to be registered and known as “E-D”.
That Order (5) does not apply to the children’s birth certificates nor to any passports issued to them.
That during the first half of the Christmas school holidays if the children are within the geographic boundaries of Port Macquarie, Nowra and Bathurst the Father shall have contact:
(1)During years ending in an even number between 9.00am and 5.00pm Christmas day.
(2)During years ending in an odd number between 9.00am and 5.00pm Boxing day.
(3)The Mother is to advise no later than 23 days before Christmas day if the children will be available to exercise contact pursuant to this order.
(4)For this order changeover is to take place at McDonalds Thornleigh.
That for the purposes of contact changeover:
Until C starts school at McDonald College:
1.Weekend contact shall commence at the conclusion of school and the father shall collect the children from school at the…

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 T-E and D

Details

AGLC: T-E and D [2001] FMCAfam 71
Case: [2001] FMCAfam 71
Decision Date: 27 June 2001

CaseChat Overview and Summary

In the matter of T-E and D, the applicant, T-E, sought various parenting orders and an injunction regarding the children's surname. The court was required to determine several legal issues, including the implementation of contact arrangements, attendance at extracurricular activities, use of mobile phones during contact, communication with the mother by telephone, the children's surname, and the collection and return point for contact. The court examined the evidence provided by both parties and considered the relevant law, including the Family Law Act and the principles outlined in Section 60B.

The court concluded that the children should continue to reside with their mother and have contact with their father. It found that the children's musical talents and interests in the performing arts should be supported, and the father should ensure their attendance at related activities. The court also decided that the father should have the authority to determine competing commitments and that the children should not be required to contact their mother daily during contact. Furthermore, the court ruled that the children's surname should be "E-D" to maintain a neutral ground between their parents and prevent further conflict.

The court made orders for the implementation of contact arrangements, attendance at extracurricular activities, and the children's surname. The court also dismissed all outstanding applications. The final orders reflect the court's determination of the best interests of the children and aim to provide them with stability and peace amidst their parents' ongoing disputes.

Orders