FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TDA & TCCD (No.1) | [2003] FMCAfam 581 |
| FAMILY LAW – Children – residence – shared residence – change of circumstances – whether test in Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-215 met – family violence issues – family violence order – two children aged 10 and 5 residing with the mother. Family Law Act 1975 (Cth), ss.65E; 68F Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-215 |
| Applicant: | D A T |
| Respondent: | C C D T |
| File No: | BRM 9057 of 2003 |
| Delivered on: | 21 November 2003 |
| Delivered at: | Brisbane |
| Hearing date: | 20 November 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Jordan |
| Solicitors for the Applicant: | Gudkovs Power Osbourne |
The Respondent appeared on his own behalf.
ORDERS
All earlier parenting orders are discharged.
The application by the father that the children C D T born 10 March 1993 and C D T born 11 February 1998 is dismissed.
The children C D T and C D T are to live with the Applicant mother.
The parties are to share responsibility for the long-term care welfare and development of the children.
The parties are to share the responsibility for the day to day care of the children when they are in each party’s care.
The father is to have contact with the children:
(a)Each alternate weekend during school term time from 5.00 p.m. on Friday to 5.00 p.m. on Sunday, commencing on Friday 28 November 2003.
(b)For half of each school holiday period excluding Christmas and Easter holidays being the first half of the school holidays in each year ending in an even number and the second half of the school holidays in each year ending in an odd number.
(c)From 5.00 p.m. on 18 December to 9.00 a.m. on Boxing Day in each year ending in an odd number commencing on 18 December 2003.
(d)From 9.00 a.m. on Boxing Day to 6.00 p.m. on the following
3 January in each year ending in an even number commencing on 26 December 2004.(e)for Easter in each year ending in an even number from 5.00 p.m. on the Thursday before Easter to 5.00 p.m. on Easter Monday.
(f)For that part of the Easter school holidays that does not include the period from the Thursday before Easter to Easter Monday in years ending in an odd number.
Contact changeover is to take place at L P, F Street, W.
The father is not to approach the mother at any contact changeover.
The father is not entitled to exercise contact on Mother’s Day.
The father is to have telephone contact with the children:
(a)each…
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- AGLC
- TDA and TCCD (No.1) [2003] FMCAfam 581
- Case
- [2003] FMCAfam 581
- Decision Date
CaseChat Overview and Summary
The court had to decide several legal issues, including the best interests of the children, the appropriate living arrangements, and the nature and extent of the father's contact. The court also needed to consider the importance of stability, continuity, and the children's views and preferences. The key issue was whether the current arrangements were in the children's best interests or whether a change in their living arrangements and contact with their father would be more beneficial.
The court found that the children's best interests would be served by maintaining the status quo, with the children living with their mother and the father having specified contact times. The court emphasised the importance of the mother's role in the children's lives and the potential disruption a change in living arrangements could cause. The court also noted the importance of the father's ongoing involvement in the children's lives, and the detailed contact schedule was designed to balance the father's right to meaningful contact with the need to minimise disruption to the children's lives.
The court issued several detailed orders to regulate the living arrangements and contact between the parties. The children were to live with their mother, and both parents were to share responsibility for their long-term care, welfare, and development. The father was granted specific contact times, including alternating weekends, half of each school holiday period, and certain periods during public holidays. The court also imposed restrictions on the father's contact, such as prohibiting him from approaching the mother at contact changeovers and from exercising contact on Mother's Day. Additionally, the court ordered the mother to provide the father with regular updates on the children's school activities and to facilitate telephone contact between the father and the children. The parties were also prohibited from using insulting or abusive language in the presence of the children.
Orders
Orders of the court
1.
All earlier parenting orders are discharged.
2.
The application by the father that the children C D T born 10 March 1993 and C D T born 11 February 1998 is dismissed.
3.
The children C D T and C D T are to live with the Applicant mother.
4.
The parties are to share responsibility for the long-term care welfare and development of the children.
5.
The parties are to share the responsibility for the day to day care of the children when they are in each party’s care.
6.
The father is to have contact with the children:
(a) Each alternate weekend during school term time from 5.00 p.m. on Friday to 5.00 p.m. on Sunday, commencing on Friday 28 November 2003.
(b) For half of each school holiday period excluding Christmas and Easter holidays being the first half of the school holidays in each year ending in an even number and the second half of the school holidays in each year ending in an odd number.
(c) From 5.00 p.m. on 18 December to 9.00 a.m. on Boxing Day in each year ending in an odd number commencing on 18 December 2003.
(d) From 9.00 a.m. on Boxing Day to 6.00 p.m. on the following
3 January in each year ending in an even number commencing on 26 December 2004.
(e) for Easter in each year ending in an even number from 5.00 p.m. on the Thursday before Easter to 5.00 p.m. on Easter Monday.
(f) For that part of the Easter school holidays that does not include the period from the Thursday before Easter to Easter Monday in years ending in an odd number.
7.
Contact changeover is to take place at L P, F Street, W.
8.
The father is not to approach the mother at any contact changeover.
9.
The father is not entitled to exercise contact on Mother’s Day.
10.
The father is to have telephone contact with the children:
(a) each Wednesday between the hours of 8.00 p.m. and 8.30 p.m.;
(b) on their birthdays; and
(c) on Father’s Day, if that day should fall on a day when the father would not otherwise be exercising contact.
11.
Telephone contact as set out in Order 10 is to take place by the children telephoning the father. The mother is to encourage and facilitate telephone contact.
12.
The father and the mother are not to use insulting or abusive or offensive language to each other or about other members of their family in the presence or hearing of either of the children.
13.
The mother is to authorise the Principal of any school attended by the children to provide to the father on a regular basis copies of all school reports, bulletins, newsletters, information about school photographs and other information normally sent to parents of children attending that school.
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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