v and v - [2004] FMCAfam 690

FEDERAL MAGISTRATES COURT OF AUSTRALIA

V & V

[2004] FMCAfam 690

FAMILY LAW – Children – contact – best interests of children – transport arrangements for contact – whether parents should share the transport – whether clothing should be provided for contact – father’s wish for more involvement with children’s schooling – whether son should have more contact with father – variation of consent orders – change of circumstances – daughter has genetic disorder – whether an order should be made that the parents should have joint responsibility for the long-term care, welfare and development of the parties’ two children.

Family Law Act 1975 (Cth), ss.60B, 61B, 61C, 61D, 65E, 68F
Family Law Reform Act1995 (Cth)

Re B (Alleged apprehension of bias) (2004) FLC) 93-185
B & A [2004] FMCAfam 671
In the Marriage of Talbot (1993) 16 Fam LR 910; FLC 92-397
In the Marriage of Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598
B and B Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755

In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324; FLC 92-778

Applicant:

M G V

Respondent:

G V

File No:

PAM 5261 of 2003

Delivered on:

30 November 2004

Delivered at:

Sydney South

Hearing date:

6 April 2004

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

That orders 1, 2 and 3 made by consent in the Family Court of Australia at Parramatta on 22 September 1994 are discharged.
That the children of the marriage T M V born 17 May 1990 and E M V born 9 June 1993 live with the Respondent mother.
That the Applicant father have contact with the children as follows:
(a)Every third weekend during school term time from after school on Friday until 7.30 p.m. on Sunday extending to 7.30 p.m. on Monday if the Monday is a public holiday;
(b)on the Queen’s Birthday public holiday weekend in each year from after school on Friday until 7.30 p.m. on Monday;
(c)on the weekend that includes Father’s Day in each year from after school on the Friday until 7.30 p.m. on the Sunday;
(d)for the first half of the Autumn school holidays in 2005 and each alternate year thereafter and for the second half of the Autumn school holidays in 2006 and each alternate year thereafter;
(e)for the whole of the Winter and Spring school holidays in each year;
(f)from 10.00 a.m. on 2 January until 4.00 p.m. on Australia Day in each year;
(g)from 4.00 p.m. on Christmas Eve until 4.00 p.m. on Boxing Day in 2005 and each alternate year thereafter; and
(h)at such other times, if any, as the parties may agree.
By consent, the father is to have telephone contact with the said children at all reasonable times to include but not restricted to Christmas Day, the father’s birthday and each of the children’s birthdays.
The father is not to exercise contact other than telephone contact on the weekend that includes…

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: v and v [2004] FMCAfam 690
Case: [2004] FMCAfam 690
Decision Date: 30 November 2004

CaseChat Overview and Summary

This case involved the parents of two children, T M V and E M V, who were litigating in the Family Court of Australia to determine the custody and contact arrangements for their children. The primary concern was the allocation of parenting responsibilities and the scheduling of contact times between the father and the children.

The court was tasked with deciding several key legal issues, including the primary residence of the children, the specific schedule for the father's contact with the children, and the responsibilities of each parent in ensuring the children's well-being during contact periods. The court also needed to address the logistics of contact changeovers, the provision of clothing and footwear, and the communication of school-related information between the parents.

The court evaluated the best interests of the children as the paramount consideration, taking into account the welfare and stability of the children, the capacity of each parent to provide for the children's physical, emotional, and educational needs, and the importance of maintaining a close and continuing relationship between the children and both parents. The court concluded that the children should live primarily with the mother, while the father was granted specific and detailed contact arrangements. The orders included provisions for the father's contact during weekends, school holidays, and public holidays, with detailed timings and locations for contact changeovers. Additionally, the court ordered that the mother should ensure the children were adequately clothed and that the father should return any clothing and footwear clean and intact.

The court's final orders discharged previous orders made by consent and established new arrangements for the children's residence and contact with the father, ensuring detailed schedules and conditions to facilitate a stable and nurturing environment for the children.

Orders

Orders of the court

That orders 1, 2 and 3 made by consent in the Family Court of Australia at Parramatta on 22 September 1994 are discharged.

That the children of the marriage T M V born 17 May 1990 and E M V born 9 June 1993 live with the Respondent mother.

That the Applicant father have contact with the children as follows:

(a) Every third weekend during school term time from after school on Friday until 7.30 p.m. on Sunday extending to 7.30 p.m. on Monday if the Monday is a public holiday;

(b) on the Queen’s Birthday public holiday weekend in each year from after school on Friday until 7.30 p.m. on Monday;

(c) on the weekend that includes Father’s Day in each year from after school on the Friday until 7.30 p.m. on the Sunday;

(d) for the first half of the Autumn school holidays in 2005 and each alternate year thereafter and for the second half of the Autumn school holidays in 2006 and each alternate year thereafter;

(e) for the whole of the Winter and Spring school holidays in each year;

(f) from 10.00 a.m. on 2 January until 4.00 p.m. on Australia Day in each year;

(g) from 4.00 p.m. on Christmas Eve until 4.00 p.m. on Boxing Day in 2005 and each alternate year thereafter; and

(h) at such other times, if any, as the parties may agree.

By consent, the father is to have telephone contact with the said children at all reasonable times to include but not restricted to Christmas Day, the father’s birthday and each of the children’s birthdays.

The father is not to exercise contact other than telephone contact on the weekend that includes Mother’s Day in each year. If Mother’s Day falls on a weekend when the father would normally be entitled to exercise contact according to these orders then contact will take place on the next weekend.

School holiday contact

For the purposes of these orders:

(a) school holidays are deemed to commence on the Saturday immediately after school term concludes;

(b) school holidays are deemed to conclude on the day immediately before the first day the children are required to attend school at the commencement of each school term;

(c) a day designated by the school attended by each of the said children as a “pupil free day” is not a day when the children are required to attend school;

(d) contact for the first half of the Autumn school holidays will commence at 10.00 a.m. on the Saturday immediately after school term concludes and will conclude at 4.00 p.m. on the middle Saturday of the said school holidays;

(e) contact for the second half of the Autumn school holidays will commence at 4.00 p.m. on the middle Saturday of the school holiday period and will conclude at 4.00 p.m. on the day immediately before the children are required to attend school at the commencement of the next school term;

(f) contact for the Winter and Spring school holidays will commence at 10.00 a.m. on the Saturday immediately after the school term concludes and conclude at 4.00 p.m. on the day immediately before the children are required to attend school at the commencement of the next school term.

Contact changeover

For the purpose of contact changeover:

(a) When exercising contact in accordance with Orders 3(a), 3(b) and 3(c), the father must collect the children from their respective schools and return them to the mother’s residence at the conclusion of each contact period;

(b) When exercising school holiday contact in accordance with Orders 3(d), 3(e), 3(f) and 3(g), the father is to collect the children from the mother and return them to the mother at the overbridge at H Railway Station.

Clothing and footwear

By consent, the mother is to ensure that the children are provided with an adequate quantity of clothing and footwear for each period of contact.

The father is to use his best endeavours to ensure that the children’s clothing and footwear are returned to the mother clean and intact at the conclusion of each contact period.

The children’s schools

10.

The mother must within seven (7) days authorise the principal of each 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 provided by the school to parents of children attending that school.

11.

Each of the parents is permitted to attend the children’s schools for the purpose of parent-teacher interviews, school concerts, prize giving ceremonies, swimming carnivals, sporting activities and other activities normally attended by parents and families of children attending the children’s schools subject to the parents complying with all reasonable directions of the Principal or Deputy Principal of each school or any person acting on behalf of the Principal or Deputy Principal.

12.

The mother is directed to forward a copy of these orders to the Principal of each school attended by the children within seven (7) days.

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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