Aligante & Waugh - [2009] FamCA 731

FAMILY COURT OF AUSTRALIA

ALIGANTE & WAUGH

[2009] FamCA 731

FAMILY LAW – CHILDREN – Application by the father for unsupervised time with the child – Opposition of the mother to any contact with the father – Allegations by the mother of sexual, physical, verbal and emotional abuse committed by the father during the marriage – Whether or not alleged abuse of the mother by the father creates an unacceptable risk that the child will be abused in the father’s care – Potential alienation of the child from the father in the maternal household

Family Law Act 1975 (Cth)

U v U [2002] 211 CLR 238
KPR & MRS [2007] FamCA 1334

APPLICANT:

Mr Aligante

RESPONDENT:

Ms Waugh

INDEPENDENT CHILDREN’S LAWYER:

Ms Fiona Reid

FILE NUMBER:

SYF

3075

2004

DATE DELIVERED:

12 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

13 March 2008; 1 - 3 April 2009; 11 - 12 June 2009; 26 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Barry

SOLICITOR FOR THE APPLICANT:

Legal Aid NSW

COUNSEL FOR THE RESPONDENT:

Ms Reynolds

SOLICITOR FOR THE RESPONDENT:

Susan Parker, Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Reid Family Lawyers

Orders

Until further order:

All previous orders are discharged.
The mother shall have sole parental responsibility for the child …, born … May 2002 (“the child”) but the mother is to advise the father in writing with not less than 21 days’ notice of any decision, including the mother’s views about that decision, to be made about a long term issue about the child’s care and the father may respond in writing to the mother expressing any views about the mother’s proposed decision.
The child shall live with the mother except when he is spending time with the father pursuant to these orders.
The child shall spend time with the father:
4.1.for a period of 3 weeks each weekend on Saturday from 11am until 5pm;
4.2.following the conclusion of the period in Order 4.1 above, commencing on the next weekend for a period until the start of the fourth school term in 2009, every alternate weekend from 12pm Saturday until 12pm Sunday.
4.3.during school terms commencing with the fourth school term in 2009, on alternate weekends from after school on Friday until the commencement of school on Monday.
4.4.for half of the short term school holidays as agreed and failing agreement for the first half of the school holidays;
4.5.for two periods of one week each during the December/January 2009/2010 school holidays as agreed, but failing agreement noon on the first Sunday in January to 5pm on the second Sunday and from noon on the third Sunday in January until 5pm on the fourth Sunday in January;
4.6.for two weeks during the December/January school holidays each year as agreed, but failing agreement, commencing at noon on the second Sunday in January and concluding at 5pm on the fourth Sunday in January, unless the…

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 Aligante & Waugh

Details

AGLC: Aligante & Waugh [2009] FamCA 731
Case: [2009] FamCA 731
Decision Date: 12 August 2009

CaseChat Overview and Summary

This matter concerned orders made by Watts J regarding the parental responsibility, living arrangements, and time spent with a child born in May 2002. The dispute involved the mother and the father of the child, with the court issuing detailed orders governing their future interactions and responsibilities concerning their child.

The court was required to determine the specific terms of parental responsibility, the child's primary residence, and the schedule for the child to spend time with each parent. This included defining the duration and frequency of contact, arrangements for school holidays, special occasions, and the process for communication and information sharing between the parents. The court also addressed the need for parental education and prohibitions against physical discipline and disparaging remarks about the other parent.

Watts J discharged previous orders and established new arrangements. Parental responsibility was vested solely in the mother, though she was required to consult the father in writing on long-term decisions. The child was ordered to live with the mother, with specific, detailed provisions for the child to spend time with the father, including weekends, school holidays, and significant dates. The orders also mandated attendance at a post-separation parenting course, prohibited physical discipline and negative comments about the other parent in the child's presence, and established protocols for communication, including telephone calls and a communication book. Furthermore, measures were put in place to prevent the child's removal from Australia, and the Independent Children's Lawyer was directed to arrange for an updated expert report on the impact of these orders.

Orders

Orders of the court

Until further order:

All previous orders are discharged.

The mother shall have sole parental responsibility for the child …, born … May 2002 (“the child”) but the mother is to advise the father in writing with not less than 21 days’ notice of any decision, including the mother’s views about that decision, to be made about a long term issue about the child’s care and the father may respond in writing to the mother expressing any views about the mother’s proposed decision.

The child shall live with the mother except when he is spending time with the father pursuant to these orders.

The child shall spend time with the father:

4.1. for a period of 3 weeks each weekend on Saturday from 11am until 5pm;

4.2. following the conclusion of the period in Order 4.1 above, commencing on the next weekend for a period until the start of the fourth school term in 2009, every alternate weekend from 12pm Saturday until 12pm Sunday.

4.3. during school terms commencing with the fourth school term in 2009, on alternate weekends from after school on Friday until the commencement of school on Monday.

4.4. for half of the short term school holidays as agreed and failing agreement for the first half of the school holidays;

4.5. for two periods of one week each during the December/January 2009/2010 school holidays as agreed, but failing agreement noon on the first Sunday in January to 5pm on the second Sunday and from noon on the third Sunday in January until 5pm on the fourth Sunday in January;

4.6. for two weeks during the December/January school holidays each year as agreed, but failing agreement, commencing at noon on the second Sunday in January and concluding at 5pm on the fourth Sunday in January, unless the parents otherwise agreed as to the commencing and concluding date for that two-week period;

4.7. in odd numbered years commencing 2009, from noon Christmas Eve until noon on Christmas Day; and

4.8. in even numbered years commencing 2010, from noon on Christmas Day until noon on Boxing Day;

4.9. in the event that the child’s weekend with his father pursuant to Order 4.3 falls on a long weekend including a Monday, then time shall be extended to 5pm on Monday; and in the event that the child’s weekend pursuant to Order 4.3 falls on a long weekend including a Friday, then time shall commence at the conclusion of school on Thursday;

4.10. such further or other time as may be agreed between the parties in writing;

4.11. for the purpose of these orders, school holiday periods are deemed to commence at close of school on the day on which the public school term ceases, and conclude at 5pm on the evening before school term recommences;

In addition to the time that the child spends with the father pursuant to Order 4 herein, on the following occasions of special significance the child shall spend time with the parties as follows:

5.1. the mother and the father will each be entitled to spend four hours with the child on his birthday at times by agreement between the parties;

5.2. the father shall not have the child on the weekend which includes Mother’s Day but in substitution the father will have the child with him on the following weekend at the same times as set out in Order 4.3;

5.3. The mother shall not have the child on the weekend which includes Father’s Day but in substitution the mother will have the child with her on the following weekend;

5.4. the child will spend time with the father each year on the weekend on which Thanksgiving falls, from the conclusion of school on Friday until 5pm Sunday.

The parents will be entitled to attend all events involving the child including:

6.1. sporting fixtures;

6.2. extracurricular activities that allow for parental attendance;

6.3. school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions

and the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from that event;

On days when changeovers pursuant to these orders occur on school days, they shall take place at the child’s school, and on days when changeovers occur on non-school days, they shall take place at the Interrelate Contact Centre at E with changeovers occurring at E McDonalds as a fallback position.

Each parent shall forthwith enrol in a post-separation parenting course approved or nominated by the Manager of the Court’s Child Dispute Service at the Sydney Registry, and each parent shall:

8.1. attend such course to completion; and

8.2. on completion of the course, obtain a letter from the course provider certifying his/her attendance at and completion of the course; and

8.3. promptly provide the other party with a copy of that letter.

Neither parent shall discipline the child by physical means, or permit any other person to do so.

10.

Neither parent shall speak disrespectfully or critically about the other parent in the hearing or presence of the child or permit any other person to do so.

11.

Each parent shall allow the child to make telephone calls to the other parent at any reasonable time, should he wish to do so.

12.

While the child is living with the mother, she shall ensure that he is available to receive telephone calls from the father every Wednesday between 6pm and 7pm.

13.

While the child is spending time with the father during school holidays, the father shall ensure that the child is available to receive telephone calls from the mother on Wednesdays between 6pm and 7pm.

14.

Neither parent shall do anything to prevent communication between the child and the other parent by way of letters or cards.

15.

Neither parent shall take or send the child from Australia or authorise any other person to do so, except with the Court’s leave or by written agreement between the parties.

16.

The child’s name shall remain on the Airport Watch list at all points of international arrivals and departures in Australia for the purposes of preventing his removal from Australia unless the parents agree pursuant to Order 15, that the child may travel overseas, in which case the parents shall do all things necessary to remove the child’s name from the Airport Watchlist for the duration of the proposed overseas travel and then do all things necessary to reinstate the child’s name on the Airport Watchlist, following his return from overseas travel.

17.

The mother shall ensure that the father is kept informed of:

17.1. any medical problems or illnesses suffered by the child while in the mother’s care;

17.2. any medication that has been prescribed for the child;

17.3. any social, school or religious functions which the child is to attend;

17.4. the residential address of the mother and particulars of the others who may reside with the child, including notification within 7 days of any change to such address or particulars;

17.5. the mother’s contact telephone number and email address, and shall notify the father within 7 days of any change to such number or email address;

17.6. any other matter relevant to the child’s welfare.

18.

The father shall ensure that the mother is kept informed of:

18.1. any medical problems or illnesses suffered by the child while in the father’s care;

18.2. any medication that has been prescribed for the child;

18.3. the father’s contact telephone number and email address, and shall notify the mother within 7 days of any change to such number or email address; and

18.4. any other matter relevant to the child’s welfare.

19.

For the purposes of communicating information between the parties, the mother and the father shall:

19.1. communicate by telephone matters of an urgent nature, and otherwise

19.2. communicate by email about day to day matters including arrangements for each party to spend time with the child, and

19.3. communicate by writing in a communication book that will remain with the child wherever he may be from time to time,

19.4. or as otherwise agreed between the parties.

20.

The Independent Children’s Lawyer shall do all things necessary to arrange for the parties and the child to attend further interviews with Dr W within 9 months of the date of these Orders for the purposes of an updated report by him as single expert, about the impact on the child of these orders. Pending any waiver by the Legal Aid Commission, the parties shall bear the costs of the updated report in equal shares. The Independent Children’s Lawyer is to provide Dr W with a copy of these reasons for judgment.

21.

Liberty is granted to the parties and the Independent Children's Lawyer to restore this matter on 7 days’ notice.

22.

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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