Tuite and Wall - [2003] FMCAfam 262

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TUITE & WALL

[2003] FMCAfam 262

FAMILY LAW – Children – best interests – Aboriginality of children – serious disregard of responsibilities of parenthood as exhibited by mother’s clandestine relocation of children.

Family Law Act 1975, ss.60B, 65E, 68F

Brown & Ferguson, Unreported decision of Moore J number BR8668 of 1996 delivered the 23^rd of February 1998

B and B: Family Law Reform Act (1997) FLC 92-755
Schenck & Schenck (1981) FLC 92-023
Re CP (1997) FLC 92-741
B & R & the Separate Representative (1995) FLC 92-636

Applicant:

MR TUITE

Respondent:

MS WALL

File No:

DNM 2607 of 2001

Delivered on:

11 July 2003

Delivered at:

Darwin

Hearing dates:

3 & 4 July 2003

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Ms M Allan

Solicitors for the Applicant:

North Australian Aboriginal Legal Aid Service

Counsel for the Respondent:

Mr G Ambrose

Solicitors for the Respondent:

Samantha Ward Pty Ltd

ORDERS

The father and mother retain joint responsibility for the long term care, welfare and development of the children of the relationship [J] born in 1993, [M] born in 1995, [C] born in 1996 and [H] born in 1999.
The said children live with the mother.
The father and mother each have sole responsibility respectively for the day to day care, welfare and development of the children when the children are in the care of that parent.
The children have contact with their father as follows:
(a)In 2003 and each alternate year thereafter, from 22 December until 12 January in the following year;
(b)In 2004 and each alternate year thereafter, from 3 January until
24 January in that year;
(c)Each year in the July school holidays from the final Friday of term until the final Friday of the holidays;
(d)By telephone each Wednesday and Sunday at 6.00pm Australian Central Time;
(e)At such other times as agreed between the parties.
For the purposes of contact:
(a)The mother will pay the costs of the return travel of the children to Darwin for contact in December/January;
(b)The father will pay the costs of the return travel of the children to Darwin for contact in July;
(c)The mother is to telephone the father for the telephone contact;
(d)During contact the father will permit the children to telephone the mother at their request and in any event each Wednesday and Sunday at 6.00pm Australian Central Time.
That 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 child’s school report; and
(b)An order form for each school photo of the children concerned.
That all existing orders be discharged.
That all applications be dismissed.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules it is certified that this was a reasonable matter for an advocate to appear for each of the parties in the proceedings.

IT IS NOTED that publication of this…

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 Tuite and Wall

Details

AGLC: Tuite and Wall [2003] FMCAfam 262
Case: [2003] FMCAfam 262
Decision Date: 11 July 2003

CaseChat Overview and Summary

The case of Tuite and Wall involved a dispute between the parents of four children, J, M, C, and H. The mother and father were seeking to determine the long-term care, welfare, and development responsibilities of each parent, as well as the contact arrangements for the father with his children. The matter was heard in the Family Court of Australia. The parents were also seeking to resolve the financial aspects of the children's care, including the payment of school fees and other related expenses.

The primary legal issues before the court were the allocation of parental responsibilities, the determination of contact arrangements between the father and the children, and the financial obligations of each parent towards the children's education and care. The court was required to consider the best interests of the children in making its decisions.

The court found that it was in the best interests of the children for the parents to retain joint responsibility for their long-term care, welfare, and development. However, the children were to live with the mother. The father was granted specific contact arrangements with the children, including set periods during the December/January and July school holidays, as well as weekly telephone contact. The court also made orders regarding the payment of travel costs for contact and the provision of school reports and photographs to the father. All existing orders and applications were discharged, and the matter was finalised.

Orders

Orders of the court

The father and mother retain joint responsibility for the long term care, welfare and development of the children of the relationship [J] born in 1993, [M] born in 1995, [C] born in 1996 and [H] born in 1999.

The said children live with the mother.

The father and mother each have sole responsibility respectively for the day to day care, welfare and development of the children when the children are in the care of that parent.

The children have contact with their father as follows:

(a) In 2003 and each alternate year thereafter, from 22 December until 12 January in the following year;

(b) In 2004 and each alternate year thereafter, from 3 January until

24 January in that year;

(d) By telephone each Wednesday and Sunday at 6.00pm Australian Central Time;

(e) At such other times as agreed between the parties.

For the purposes of contact:

(a) The mother will pay the costs of the return travel of the children to Darwin for contact in December/January;

(b) The father will pay the costs of the return travel of the children to Darwin for contact in July;

(d) During contact the father will permit the children to telephone the mother at their request and in any event each Wednesday and Sunday at 6.00pm Australian Central Time.

That 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 child’s school report; and

(b) An order form for each school photo of the children concerned.

That all existing orders be discharged.

That all applications be dismissed.

Pursuant to rule 21.15 of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.