TUCKER & TUCKER - [2012] FMCAfam 411

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TUCKER & TUCKER

[2012] FMCAfam 411

FAMILY LAW – Children – parenting – interim orders – relocation – whether unacceptable risk of abuse – mental health issues – misuse of alcohol.

PRACTICE & PROCEDURE – Affidavit – where applicant sought leave to rely on affidavit handed up at the hearing – where leave refused.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 65H, 68L

Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Jaeger and Jaeger (1994) FLC 92-492
Johnson & Page [2007] FamCA 1235: (2007) FLC 93-344
Re K (1994) 17 Fam LR 537; FLC 92-461
Mallahan & Mallahan [2010] FamCA 631
Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343

Applicant:

MR TUCKER

Respondent:

MS TUCKER

File Number:

SYC 7316 of 2011

Judgment of:

Scarlett FM

Hearing date:

24 April 2012

Date of Last Submission:

24 April 2012

Delivered at:

Sydney

Delivered on:

8 May 2012

REPRESENTATION

Solicitors for the Applicant:

David H.Cohen & Co

Counsel for the Respondent:

Mr Leggat SC

Solicitors for the Respondent:

Frankham Family Lawyers

ORDERS

UNTIL FURTHER ORDER

The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children of the marriage [Y] born [in] 2002 and [Z] born [in] 2006.
The children [Y] and [Z] are to live with the mother.
The mother is permitted to relocate the residence of the children [Y] and [Z] to the Newcastle area.
The children are to spend time with the father as follows:
(a)Each alternate weekend during the school term from 10.00 am to 4.00 pm on the Saturday and from 10.00 am to 4.00 pm on the Sunday commencing on Saturday 5 May 2012;
(b)Each weekend during the school holidays from 10.00 am to 4.00 pm on the Saturday and from 10.00 am to 4.00 pm on the Sunday;
(c)From 10.00 am to 4.00 pm on Father’s Day;
(d)From 10.00 am to 4.00 pm on the Father’s birthday being [date omitted] 2012; and
(e)From 12 noon to 4.00 pm on the birthday of the child [Y] being [date omitted] 2012.
For the purposes of Orders (4)(a) and (b) the father is to collect the children from the mother’s accommodation in Sydney at the commencement of the time and return the children to the mother’s accommodation in Sydney at the conclusion of the children’s time with the father.
For the purposes of Orders (4)(c), (d) and (e) the father is to collect the children from the mother’s residence in Newcastle at the beginning of the time and return the children to the mother’s residence in Newcastle at the conclusion of the children’s time with the father..
Order (4) above is conditional on the father complying with the following Orders:
(a)The father is restrained from drinking alcohol during the time that the children spend with him and for a period of twelve (12) hours beforehand; and
(b)The father is restrained from accessing or viewing any…

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: TUCKER & TUCKER [2012] FMCAfam 411
Case: [2012] FMCAfam 411
Decision Date: 8 May 2012

CaseChat Overview and Summary

Tucker & Tucker involved the father and mother of two children, [Y] born in 2002 and [Z] born in 2006. The primary dispute centred on parenting arrangements, specifically the mother's intention to relocate to the Newcastle area with the children, and concerns about the father's alcohol misuse and mental health issues. The matter was heard in the Family Court of Australia.

The court had to determine whether the proposed relocation posed an unacceptable risk to the children, given the father's history of alcohol misuse and mental health problems. It also needed to establish a suitable parenting arrangement, including contact arrangements between the father and the children. Additionally, the court considered the father's request for leave to rely on an affidavit handed up at the hearing, which was ultimately refused.

The court found that the mother could relocate to Newcastle, but the father's access to the children was subject to certain conditions. The father was prohibited from consuming alcohol or viewing pornographic material for twelve hours before and during the time he spent with the children. The court appointed an independent children's lawyer to represent the interests of [Y] and [Z], ensuring their voices were heard in the decision-making process. The court ordered equal shared parental responsibility and stipulated specific visitation arrangements for the father, contingent on compliance with the imposed conditions.

The final orders mandated equal shared parental responsibility for the children, with the children residing with the mother. The mother was permitted to relocate to Newcastle, and the father was granted specific visitation rights, subject to the conditions regarding alcohol consumption and access to pornographic material. The children's interests were to be represented by an independent lawyer, and both parents were required to provide all relevant documents to the appointed lawyer within fourteen days.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children of the marriage [Y] born [in] 2002 and [Z] born [in] 2006.

The children [Y] and [Z] are to live with the mother.

The mother is permitted to relocate the residence of the children [Y] and [Z] to the Newcastle area.

The children are to spend time with the father as follows:

(a) Each alternate weekend during the school term from 10.00 am to 4.00 pm on the Saturday and from 10.00 am to 4.00 pm on the Sunday commencing on Saturday 5 May 2012;

(b) Each weekend during the school holidays from 10.00 am to 4.00 pm on the Saturday and from 10.00 am to 4.00 pm on the Sunday;

(d) From 10.00 am to 4.00 pm on the Father’s birthday being [date omitted] 2012; and

(e) From 12 noon to 4.00 pm on the birthday of the child [Y] being [date omitted] 2012.

For the purposes of Orders (4)(a) and (b) the father is to collect the children from the mother’s accommodation in Sydney at the commencement of the time and return the children to the mother’s accommodation in Sydney at the conclusion of the children’s time with the father.

For the purposes of Orders (4)(c), (d) and (e) the father is to collect the children from the mother’s residence in Newcastle at the beginning of the time and return the children to the mother’s residence in Newcastle at the conclusion of the children’s time with the father..

Order (4) above is conditional on the father complying with the following Orders:

(a) The father is restrained from drinking alcohol during the time that the children spend with him and for a period of twelve (12) hours beforehand; and

(b) The father is restrained from accessing or viewing any pornographic material during the time that the children spend with him and for a period of twelve (12) hours beforehand.

The interests of the children [Y] born [in] 2002 and [Z] born [in] 2006 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange the representation of the children by an appropriately qualified lawyer.

The parties are to forward to Legal Aid New South Wales for the use of the independent children’s lawyer when appointed copies of all applications, responses, affidavits and other relevant documents within fourteen (14) days of the date of this Order.

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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