Bates and Whittaker - [2016] FCCA 2601

FEDERAL CIRCUIT COURT OF AUSTRALIA

BATES & WHITTAKER

[2016] FCCA 2601

Catchwords:
FAMILY LAW – Parenting – where there is dispute between the parents as to whether there should be equal shared parental responsibility – where the evidence indicates many years of conflict and distrust particularly on the part of the father – where the father has an acquired brain injury and as a result is fixated on concerns as to the child’s safety in the mother’s household – where there is no evidence of risk to the child – where there is evidence that the child has become aware at least passingly of the father’s concerns and that the mother’s behaviour at handover is “a little weird” – where the father and others in his locality have subjected the child to questioning, interviews and the involvement of various authorities – where the best interests of the child are able to be met by providing certainty and stability through orders generally as proposed by the independent children’s lawyer and supported by the mother.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CA, 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE

Cases cited:
Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell & Chappell (2008) FLC 93-382
Heath & Hemming (No 2) [2011] FamCA 749
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439

MRR v GR (2010) 240 CLR 461

Applicant:

MS BATES

Respondent:

MR WHITTAKER

File Number:

BRC 5790 of 2014

Judgment of:

Judge Coker

Hearing dates:

27-29 June 2016

Date of Last Submission:

29 June 2016

Delivered at:

Brisbane

Delivered on:

14 October 2016

REPRESENTATION

Applicant:	In Person
Respondent:	In Person

Counsel for Independent Children’s Lawyer:	Ms Cullen
Independent Children’s Lawyer:	Boughton Legal

ORDERS

That all previous parenting orders be discharged.
That the child X born (omitted) 2005 live with the mother.
That the mother have sole parental responsibility for the major long term issues for the child.
Except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)The mother shall inform the father of the issue about which a decision needs to be made, the decision she would like to make in respect to such issue and the reasons for the proposed decision, in writing; and
(b)The mother shall give the father 14 days to respond; and
(c)The mother shall consider the father’s views/response when coming to her decision; and
(d)The mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
That the child spend time and communicate with the father at all times as may be agreed between the parties, and failing agreement as follows:-
(a)Each alternate Sunday and on Father’s Day each year…

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 Bates and Whittaker

Details

AGLC: Bates and Whittaker [2016] FCCA 2601
Case: [2016] FCCA 2601
Decision Date: 14 October 2016

CaseChat Overview and Summary

In *Bates and Whittaker*, heard by Judge Coker, the dispute concerned parenting orders for the child X. The previous parenting orders were discharged, and the court made new orders regarding the child's living arrangements, parental responsibility, and time spent with each parent.

The court was required to determine the best interests of the child X, specifically concerning where the child would live, who would have parental responsibility for major long-term issues, and the nature and extent of the child's time with each parent. The court also had to consider provisions for communication between the parents regarding the child's welfare and education, and to address restrictions on each parent's conduct during their time with the child.

The court ordered that the child X live with the mother and that the mother have sole parental responsibility for major long-term issues. However, the mother was required to consult with the father in writing regarding significant decisions, providing him with 14 days to respond and considering his views before making a final decision. The child was to spend time with the father on alternate Sundays and Father's Day, with specific provisions for communication via letters and a period of up to seven nights during school holidays, subject to the father providing notice and travel details. The father was prohibited from taking the child to counsellors or agencies and was restricted from having other adults present during his time with the child, except for extended family. The mother could suspend the child's time with the father for up to two weeks annually for uninterrupted holiday time. The orders also included provisions for parents to keep each other informed of addresses, contact details, and the child's medical and educational information, and mandated respectful communication and behaviour towards the other parent in the child's presence. All outstanding applications were dismissed, and the Independent Children's Lawyer was discharged.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the child X born (omitted) 2005 live with the mother.

That the mother have sole parental responsibility for the major long term issues for the child.

Except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:

(a) The mother shall inform the father of the issue about which a decision needs to be made, the decision she would like to make in respect to such issue and the reasons for the proposed decision, in writing; and

(b) The mother shall give the father 14 days to respond; and

(d) The mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

That the child spend time and communicate with the father at all times as may be agreed between the parties, and failing agreement as follows:-

(a) Each alternate Sunday and on Father’s Day each year for a period of six hours from 9.00am to 3.00pm with the changeover to take place at (omitted);

(b) By the father sending letters and/or postcards to the child at the address provided by the mother in accordance with the orders;

(c) On one occasion each year the child spend time with the father during school holidays for up to a period of seven nights for the purpose of the child and the father spending time with the extended paternal family, the father to provide the mother with not less than eight weeks” notice of travel dates for he and the child and the father to provide the mother with a copy of the flight itinerary and details and the mother to deliver the child to and collect the child from the airport for the purpose of such travel with the father.-

That the father is prevented from taking the child to any counsellor or other agency, including the Department of Communities and Queensland Police.

During periods that the child spends time with the father the father is to ensure that there is no other adult present aside from members of the child’s extended family.

That each year the time that the child spends with the father may be suspended for up to two weeks on not more than three occasions for the purpose of the child spending uninterrupted holiday time with the mother (either at home or away) upon the mother giving the father notice of such suspension not less than four weeks prior to the suspended time.

Specific Issues

That the mother and father shall:

(a) Keep the other parent informed at all times of their residential address and landline contact telephone number and of any changes within forty-eight (48) hours of any change occurring;

(b) Keep the other parent informed of the names and address of any treating medical or other health practitioners who treat the child;

(c) Inform that other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent;

10.

That this order is authority to the schools attended by the child to give each parent information about the child’s education progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).

11.

That this order is authority to any treating medical or other health practitioner for the child to provide to each parent such information that they are lawfully able to provide about the child.

12.

That during the time the child is with either parent, that parent shall:-

(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b) Speak of the other parent respectfully and refer to the other parent as “mum:, “dad”, “mummy” or “daddy” as the case may be;

(c) Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent I the hearing or presence of the child;

(d) Not consume alcohol to excess or use any illicit drugs so as to be under the influence of either alcohol or any illicit drugs or permit the child to remain in the presence of a person using illicit drugs.

13.

That all outstanding applications otherwise be dismissed.

14.

That the Independent Children’s Lawyer be discharged.

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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