Talcott and Oblander - [2008] FMCAfam 1135

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TALCOTT & OBLANDER

[2008] FMCAfam 1135

FAMILY LAW – Children (parenting orders) – child aged under 2 years living with the mother – overnight contact – best interests of the child – parenting after separation course.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 65AA

Applicant:

MR TALCOTT

Respondent:

MS OBLANDER

File Number:

CRC 123 of 2008

Judgment of:

Scarlett FM

Hearing dates:

23 & 26 September 2008

Date of Last Submission:

26 September 2008

Delivered at:

Sydney

Delivered on:

22 October 2008

REPRESENTATION

Applicant’s Solicitor:

Ms Adams

Solicitors for the Applicant:

Burridge Harris & Flynn

Solicitor for the Respondent:

Mr Hammond

Solicitors for the Respondent:

Legal Aid NSW

ORDERS

That the parties retain shared parental responsibility for the Child [X] born in 2006.
That the Child live with the mother.
That the Child spend time with the Father until she commences school as follows:
(a)
each Saturday and Sunday from 10:00am to 4:00pm until

31 March 2009
;
(b)from and after 31 March 2009 until 31 March 2010, each alternate weekend from 4:00pm Friday until 4:00pm Saturday and each other weekend from 10:00am Saturday until 4:00pm Sunday;
(c)from and after 31 March 2010 until the first weekend in January 2011, each alternate weekend from 4:00pm Friday until 4:00pm Sunday and each other weekend from 10:00am until 4:00pm on Saturday; and
(d)from and after the first weekend in January 2011, until the Child commences school, each alternate weekend from 4:00pm Friday until 9:00am on Monday extending to 9:00am on Tuesday if the Monday should be a public holiday, and each other Saturday from 9:00am until 5:00pm.
Once the Child commences school, she is to spend time with the Father as follows:
(a)each alternate weekend during school term from 4:00pm Friday until 9:00am on Monday extending to 9:00am on Tuesday if the Monday is a Public holiday and one half of each school holiday period except the Christmas/January school holiday period, being the first half in years ending in an odd number and the second half in years ending in an even number;
(b)for alternate weeks in the Christmas/January school holiday period commencing with the first week in years ending in an odd number and the second week in years ending with an even number.
The Child will also spend time with the father as follows:
(a)from 10:00am until 4:00pm on Christmas Day 2008 and thereafter from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in years ending in an even number and from 2:00pm on Christmas Day until 10:00am on Boxing Day in years ending in an odd number;
(b)for four (4) hours on the child’s birthday 27 November in each year being from 4:00pm to 8:00pm if on a week day and from 10:00am to 2:00pm if the day falls on a weekend if she is not otherwise to be in his care; and
(c)on Father’s Day in each year from 10:00am until 4:00pm if she is not otherwise to be in his care.

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 Talcott and Oblander

Details

AGLC: Talcott and Oblander [2008] FMCAfam 1135
Case: [2008] FMCAfam 1135
Decision Date: 22 October 2008

CaseChat Overview and Summary

Talcott and Oblander involved a dispute between the parents of a child born in 2006, concerning arrangements for the child's care and contact with both parents. The case was heard in the Family Court of Australia. The primary concern was the establishment of a parenting arrangement that would allow for the child to have regular and meaningful contact with both parents while ensuring her welfare and best interests were prioritised.

The court was tasked with determining an appropriate parenting arrangement that balanced the rights and responsibilities of both parents while considering the child's needs and welfare. This included deciding on the living arrangements, the schedule for contact between the child and each parent, and other relevant matters such as communication between the child and the non-residential parent, and the prohibition of exposing the child to harmful environments or influences.

The court's reasoning was based on the overarching principle of the best interests of the child, as outlined in section 60CC of the Family Law Act 1975. The court recognised the importance of both parents being involved in the child's life and sought to create a detailed and flexible arrangement that would evolve with the child's age and circumstances. The court emphasised the need for stability and predictability in the child's life, while also allowing for some flexibility to accommodate changes in the child's school schedule and other commitments.

The court's orders included provisions for shared parental responsibility, with the child living primarily with the mother. The contact arrangements were meticulously detailed, with specific times allocated for the child to spend with the father, varying as the child grew older and entered school. Special provisions were made for significant dates such as Christmas, the child's birthday, and Father's and Mother's Days. The court also mandated regular telephone contact between the child and the father, and set out rules for the exchange of the child between parents and the maintenance of a communication book. Additionally, both parents were required to complete a parenting after separation course and to refrain from using derogatory language in the presence of the child. The orders also included prohibitions against exposing the child to harmful environments or individuals under the influence of drugs or alcohol.

Orders

Orders of the court

That the parties retain shared parental responsibility for the Child [X] born in 2006.

That the Child live with the mother.

That the Child spend time with the Father until she commences school as follows:

(a)

each Saturday and Sunday from 10:00am to 4:00pm until

31 March 2009

;

(b) from and after 31 March 2009 until 31 March 2010, each alternate weekend from 4:00pm Friday until 4:00pm Saturday and each other weekend from 10:00am Saturday until 4:00pm Sunday;

(c) from and after 31 March 2010 until the first weekend in January 2011, each alternate weekend from 4:00pm Friday until 4:00pm Sunday and each other weekend from 10:00am until 4:00pm on Saturday; and

(d) from and after the first weekend in January 2011, until the Child commences school, each alternate weekend from 4:00pm Friday until 9:00am on Monday extending to 9:00am on Tuesday if the Monday should be a public holiday, and each other Saturday from 9:00am until 5:00pm.

Once the Child commences school, she is to spend time with the Father as follows:

(a) each alternate weekend during school term from 4:00pm Friday until 9:00am on Monday extending to 9:00am on Tuesday if the Monday is a Public holiday and one half of each school holiday period except the Christmas/January school holiday period, being the first half in years ending in an odd number and the second half in years ending in an even number;

(b) for alternate weeks in the Christmas/January school holiday period commencing with the first week in years ending in an odd number and the second week in years ending with an even number.

The Child will also spend time with the father as follows:

(a) from 10:00am until 4:00pm on Christmas Day 2008 and thereafter from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in years ending in an even number and from 2:00pm on Christmas Day until 10:00am on Boxing Day in years ending in an odd number;

(b) for four (4) hours on the child’s birthday 27 November in each year being from 4:00pm to 8:00pm if on a week day and from 10:00am to 2:00pm if the day falls on a weekend if she is not otherwise to be in his care; and

The Child is to spend time with the Mother, if not otherwise in her care, as follows:

(a) for four (4) hours on the child’s birthday 27 November in each year from 12 noon to 4:00pm; and

(b) on Mother’s Day in each year from 10:00am until 4:00pm.

The Child is to spend time with the Mother from 2009 onwards from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in odd numbered years and from 2:00pm on Christmas Day until 10:00am on Boxing Day in even numbered years.

The Child shall communicate with the Father by telephone each Tuesday and Friday between the hours of 5:30pm and 6:00pm and for this purpose the Mother is to advise the Father of a telephone number which the Father is to telephone.

Changeovers of care between the parents are to take place at the front of [omitted].

10.

The parties are to maintain a communications book which will accompany the Child at changeovers.

11.

The Mother and the Father are to enrol in a parenting after separation course conducted by the family relationship centre at Maroochydore and undertake that course until completion.

12.

Neither party is to use insulting or derogatory comments to or about the other or any member of the other’s family or partner in the presence or hearing of the Child or permit any third party to do so.

13.

Neither party is to permit the Child to be or remain in the company of any person who:

(a) is using or is under the influence of any illegal drug; or

(b) uses or threatens violence of any kind ; or

14.

Neither party is to refer to any other person than the mother as the child’s mother or any other person than the father as the child’s father.

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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