VCM and KRM - [2005] FMCAfam 108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VCM & KRM

[2005] FMCAfam 108

FAMILY LAW – Parenting – competing interim residence applications – father removed eldest child aged 5 from mother’s care – both parents seeking exclusive occupation order.

Family Law Act 1975 (Cth)

Bassett v Bassett (1975) 1 All ER 513 at 520
CDJ v VAJ (1998) 157 ALR 686
Cowling’s case (1998) FLC 92-801
Davis v Davis (1983) FLC 91-319
Gorst & Gorst [2004] FMCA Fam 300
Page v Page (1981) FLC 91-025
Price v Price (unreported 12 July 1982)
Scholte (2002) FamCA 59 (unreported)
Sieling v Sieling (1979) FLC 90-627

Applicant:

VCM

Respondent:

KRM

File Number:

PAM 597 of 2005

Judgment of:

Sexton FM

Hearing date:

9 March 2005

Delivered at:

Parramatta

Delivered on:

11 March 2005

REPRESENTATION

Solicitors for the Applicant:

Legal Aid Commission of NSW

Solicitors for the Respondent:

Redmond Hale Simpson

Counsel for the Respondent:

Mr P. Livingstone

UNTIL FURTHER ORDER THE COURT ORDERS:

That the parties have joint responsibility for making decisions about the long term care, welfare and development of the children of the marriage, KAM, born 26 May 1999, now 5 years, EMM, born

14 August 2001, now 3 years and SRM, born 12 February 2004, now 13 months.
That the mother have responsibility for making decisions about the day to day care of the children when they are in her care and the father have responsibility for making decisions about the day to day care of the children when they are in his care.
That the father return KAM to the mother by no later than 5.00p.m today and that the mother have liberty to apply at 24 hours notice in the event the father fails to comply with this order.
That the children reside with the father as follows:
(a)On each alternate weekend from 4.00p.m Friday until 6.00p.m Sunday [or Monday if a public holiday], such residence periods to commence on Friday 18 March 2005.
(b)For 3 hours on Easter Sunday from 10.00a.m until 1.00pm or at such other time as agreed between the parties [if the children residing with mother].
(c)One overnight period each week on a day to be agreed between the parties, or failing agreement, on the day KAM has soccer training from 4.00p.m until the following morning when the father shall deliver KAM to school and the other children to the mother’s residence by no later than 9.00a.m or as otherwise agreed, such overnight periods to commence in the week beginning 14 March 2005.
(d)On Father’s Day from 9.00a.m until 6.00p.m [if the children are residing with the mother].
(e)On the children’s birthdays for a period of 3 hours, precise times to be agreed between the parties [if the children are residing with the mother].
(f)At any other time by agreement between the parties.
That the children reside with the mother:
(a)At all times they are not residing with the father.
(b)For 3 hours on Easter Sunday from 10.00a.m until 1.00pm or at such other time…

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 VCM and KRM

Details

AGLC: VCM and KRM [2005] FMCAfam 108
Case: [2005] FMCAfam 108
Decision Date: 11 March 2005

CaseChat Overview and Summary

In the matter of VCM and KRM, the Federal Magistrates Court was tasked with determining interim parenting orders for the three children of the marriage, KAM, EMM, and SRM. The parties had filed competing applications for interim residence, contact, and exclusive occupation of the former matrimonial home. Both parties sought injunctions for the welfare of the children under Section 68B(1)(c)(i) of the Family Law Act 1975 (Cth). The court was required to determine the interim residence of the children and whether the party with the care of the children should have exclusive occupation of the home. The court considered the needs of the children, the hardship to either party or the children, the means of the parties, the needs of the parties, and the conduct of the parties. The court found that the relationship between the parties had been deteriorating for at least the last 2-3 years and had deteriorated markedly in recent weeks, adversely affecting the children. The court decided that the children's interests were best served by an order that they reside primarily with their mother. In relation to exclusive occupation, the court decided it was not in the best interests of the children for the father to return to the home, and ordered that the father not return to the home.

Final orders included joint responsibility for making decisions about the long term care, welfare and development of the children, with the mother having responsibility for making decisions about the day-to-day care of the children when they are in her care and the father having responsibility for making decisions about the day-to-day care of the children when they are in his care. The children were ordered to reside with the father on alternate weekends and one night each week, with other times for contact to be agreed between the parties. The children were also to reside with the mother at all other times they were not residing with the father. The court made orders for the children to have liberal telephone contact with the other parent when in each party's care, and restrained both parents from entering the home of the other without consent. The father was also ordered to return KAM to the mother and deliver personal possessions to the father's mother. The matter was transferred to the Family Court of Australia for further proceedings.

Orders