Wiley & Wiley - [2007] FMCAfam 932

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILEY & WILEY

[2007] FMCAfam 932

FAMILY LAW – Children – relocation.

Applicant:

MR WILEY

Respondent:

MS WILEY

File number:

CAM 1334 of 2006

Judgment of:

Brewster FM

Hearing dates:

26 & 27 July 2007

Delivered at:

Canberra

Delivered on:

9 November 2007

REPRESENTATION

Counsel for the Applicant:

Mr Miller

Solicitors for the Applicant:

Phelps Reid

Counsel for the Respondent:

Ms Tonkin

Solicitors for the Respondent:

Farrar Gesini & Dunn

ORDERS

That in these Orders the term “contact” means spending time with or communicating with depending on the context.
That as from the end of the 2007 school year all previous Orders in relation to the children [X], born in 1994, [Y], born in 1998 and [Z], born in 2001 be discharged.
That the children live with the mother.
That the parties have equal shared parental responsibility in relation to the children.
That the father have contact with the children as follows:
(a)For one half of each school holiday period with the exception of the second term holiday being the first half of holidays falling in or commencing in even numbered years and the second half of holidays falling in or commencing in odd numbered years.
(b)For the whole of the second term school holiday.
(c)In 2008 and 2011 for the long weekend in which Anzac Day falls.
(d)For the June long weekend.
(e)For the long weekend that includes Melbourne Cup Day.
(f)From Friday to Monday on two further weekends to be nominated by the father in the first and the third school terms.
(g)By telephone at reasonable times and at reasonable intervals.
That when holiday contact occurs in the first half of the holidays it will commence on the day after school breaks up. When it is in the second half it will conclude on the last day before the children return to school except in the case of the Christmas school holidays where it is to end on the second last day before the children return to school.
That for the purposes of holiday contact the mother is to deliver the children to the father in [T] and the father is to return them to the mother at the conclusion of contact in [S]. Holiday contact is to commence at 1.00pm and shall conclude at a time nominated by the father but not later than 6.00pm. The father is to notify the mother at least 24 hours in advance of the time that he proposes to return the children.
That for the purposes of weekend contact the mother is to take the children to the father’s home in [T] at the commencement of the contact and collect them at the conclusion of contact. Weekend contact shall conclude at 2.30pm.
That one half of the school holidays is to be computed by dividing the total number of days the children do not attend school. If this is an odd number of days the father is to have the extra day.
That the father…

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 Wiley & Wiley

Details

AGLC: Wiley & Wiley [2007] FMCAfam 932
Case: [2007] FMCAfam 932
Decision Date: 9 November 2007

CaseChat Overview and Summary

In the Family Court of Australia, the case of Wiley & Wiley involved the parents of three children, X, Y, and Z, born in 1994, 1998, and 2001 respectively. The parents, who are no longer together, were in dispute over the arrangements for the children's residence and contact with their father. The court was tasked with determining the best interests of the children in relation to their living arrangements and the father's access to them.

The court was required to decide several legal issues including the primary residence of the children, the allocation of parental responsibility, and the specific terms of the father's contact with the children. The court had to consider the welfare and best interests of the children as the paramount consideration and weigh the various factors influencing their living arrangements and the father's access. The court had to interpret and apply the relevant provisions of the Family Law Act 1975 in determining these issues.

In delivering the judgment, the court found that the children's best interests would be served by living primarily with their mother. However, it was determined that the father should have significant contact with the children. The court set out detailed arrangements for the father's contact, including specific periods during school holidays, certain long weekends, and regular weekend visits. The court also established provisions for the logistics of handovers and communication between the parents. The court concluded that equal shared parental responsibility was in the children's best interests.

The court issued comprehensive orders detailing the children's residence with their mother, the allocation of parental responsibility, and the father's contact arrangements. These orders included specific instructions regarding the timing and location of contact, the method of handovers, and the provision of a motor vehicle for the father's travel. The court also outlined the process for the father to nominate additional contact times during school terms, provided he gave sufficient notice to the mother.

Orders

Orders of the court

That in these Orders the term “contact” means spending time with or communicating with depending on the context.

That as from the end of the 2007 school year all previous Orders in relation to the children [X], born in 1994, [Y], born in 1998 and [Z], born in 2001 be discharged.

That the children live with the mother.

That the parties have equal shared parental responsibility in relation to the children.

That the father have contact with the children as follows:

(a) For one half of each school holiday period with the exception of the second term holiday being the first half of holidays falling in or commencing in even numbered years and the second half of holidays falling in or commencing in odd numbered years.

(b) For the whole of the second term school holiday.

(d) For the June long weekend.

(e) For the long weekend that includes Melbourne Cup Day.

(f) From Friday to Monday on two further weekends to be nominated by the father in the first and the third school terms.

(g) By telephone at reasonable times and at reasonable intervals.

That when holiday contact occurs in the first half of the holidays it will commence on the day after school breaks up. When it is in the second half it will conclude on the last day before the children return to school except in the case of the Christmas school holidays where it is to end on the second last day before the children return to school.

That for the purposes of holiday contact the mother is to deliver the children to the father in [T] and the father is to return them to the mother at the conclusion of contact in [S]. Holiday contact is to commence at 1.00pm and shall conclude at a time nominated by the father but not later than 6.00pm. The father is to notify the mother at least 24 hours in advance of the time that he proposes to return the children.

That for the purposes of weekend contact the mother is to take the children to the father’s home in [T] at the commencement of the contact and collect them at the conclusion of contact. Weekend contact shall conclude at 2.30pm.

That one half of the school holidays is to be computed by dividing the total number of days the children do not attend school. If this is an odd number of days the father is to have the extra day.

10.

That the father is to advise the mother by the commencement of school in first and third terms of the weekends he wishes to exercise contact pursuant to Order 5(f).

11.

That if the father wishes he may upon giving the mother at least

14 days notice exercise weekend contact during school terms on any other occasion nominated by him provided he picks the children up from and returns them to the mother’s residence in [S]. He may pick them up either on Friday or Saturday at a time nominated by him and return them at a time of his choosing on Sunday, provided it is not after 6.00pm, or take them to school on the Monday morning. The mother is to provide him with a motor vehicle if he travels to Melbourne by air.

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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