Cartwright & Wilson - [2011] FamCA 939

FAMILY COURT OF AUSTRALIA

Cartwright & Wilson

[2011] FamCA 939

FAMILY LAW – CHILDREN – Equal Shared Parental responsibility; Substantial and significant time; With whom a child lives; With whom a child spends time; Family violence; Allegations of child sexual abuse not substantiated.

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
McCall & Clark (2009) FLC 93-405
Mazorski & Albright (2007) 37 Fam LR 518
G & C [2006] FamCA 994
Blair & Blair [2007] FamCA 253
Kennedy & Kennedy [2007] FamCA 1221
Goode & Goode (2006) FLC 93-286

APPLICANT:

Ms Cartwright

RESPONDENT:

Mr Wilson

Independent children’s lawyer:

Ric Gonzalez

FILE NUMBER:

PAC

6495

2007

DATE DELIVERED:

14 December 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATES:

22, 23, 24 and 25 November 2010; 10, 11, 12 and 19 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd, Mr Wong

SOLICITOR FOR THE APPLICANT:

Kasey Pearce
Higgins Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Harris, Mr Gersbach

SOLICiTOR FOR THE RESPONDENT:

Cathy-Ann Grew
Matthews Folbigg Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Barnett

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Gonzalez & Co

Orders

That all previous Orders be and are hereby discharged.
That the parents, Mr Wilson and Ms Cartwright, have equal shared parental responsibility for the child, B born … 2005.
That each parent is to have responsibility for making decisions as to the day to day care, welfare and development of the child whilst the child is in that parent’s care.
That the said child live with the mother.
That the said child spend time with the father as follows:-
a.If the time is to be spent in Canberra:-
i.During school term each alternate weekend from after school on Friday until 6.00 pm on Sunday, extending to 7.00 pm during E.D.S.T.
ii.The father is to collect the child from school at the commencement of each such period and return the child to the mother’s place of residence at the conclusion of each such period of time.
iii.The first period of time shall commence on the second Friday after the commencement of the first school term in 2012.
b.If the father acquires accommodation and his time with the said child is to be spent in the C Region:-
i.During school term from after school Friday to before school on Monday, extending to Tuesday in the event of a long weekend, for the first two weekends in every three week cycle.
ii.The father is to collect the child from school at the commencement of each such period of time and return the child to school at the expiration of each such period of time.
c.For the purpose of the immediately preceding Order, that the first period of such time shall commence on the weekend next falling not less than seven (7) days after the father notifies the mother in writing of the address of the premises in the C Region where he will spend time with the child.

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 Cartwright & Wilson

Details

AGLC: Cartwright & Wilson [2011] FamCA 939
Case: [2011] FamCA 939
Decision Date: 14 December 2011

CaseChat Overview and Summary

In this matter before Collier J, the court considered the parenting arrangements for a child, B, born in 2005, between the child's parents, Ms Cartwright and Mr Wilson. The dispute involved allegations of child sexual abuse, which were not substantiated.

The court was required to determine the extent of equal shared parental responsibility, the specific arrangements for the child to live with and spend time with each parent, and to address issues of family violence and the communication between the parents. The court also had to consider the child's schooling and the parties' conduct towards each other and in the presence of the child.

Collier J discharged previous orders and made new orders establishing equal shared parental responsibility for B. The child was ordered to live with the mother, Ms Cartwright, while detailed provisions were made for the child to spend time with the father, Mr Wilson, including during school terms, school holidays, and on specific occasions such as birthdays and Father's and Mother's Days. The court also made orders regarding communication, school enrolment and fees, and prohibited denigration of either parent in the child's presence. Specific orders were made concerning the mother's therapy and both parents' participation in parenting programs, as well as provisions for the child's contact with the Independent Children's Lawyer. All outstanding applications were dismissed.

Orders

Orders of the court

That all previous Orders be and are hereby discharged.

That the parents, Mr Wilson and Ms Cartwright, have equal shared parental responsibility for the child, B born … 2005.

That each parent is to have responsibility for making decisions as to the day to day care, welfare and development of the child whilst the child is in that parent’s care.

That the said child live with the mother.

That the said child spend time with the father as follows:-

a. If the time is to be spent in Canberra:-

i. During school term each alternate weekend from after school on Friday until 6.00 pm on Sunday, extending to 7.00 pm during E.D.S.T.

ii. The father is to collect the child from school at the commencement of each such period and return the child to the mother’s place of residence at the conclusion of each such period of time.

iii. The first period of time shall commence on the second Friday after the commencement of the first school term in 2012.

b. If the father acquires accommodation and his time with the said child is to be spent in the C Region:-

i. During school term from after school Friday to before school on Monday, extending to Tuesday in the event of a long weekend, for the first two weekends in every three week cycle.

ii. The father is to collect the child from school at the commencement of each such period of time and return the child to school at the expiration of each such period of time.

c. For the purpose of the immediately preceding Order, that the first period of such time shall commence on the weekend next falling not less than seven (7) days after the father notifies the mother in writing of the address of the premises in the C Region where he will spend time with the child.

d. During school holiday periods falling between terms 1 and 2, 2 and 3 and 3 and 4, the father is to spend time with the child for one half of all such school holiday periods as agreed between the parties, and failing agreement, for the second half in even numbered years commencing in 2012 and the first half in odd numbered years commencing in 2013.

e. During the December/January school holiday periods, the father is to spend time with the child for one half of all such school holiday periods as agreed between the parties, and failing agreement, for the second half in the 2011/2012 holiday period and each alternate holiday period thereafter, and for the first half in the 2012/2013 holiday period and each alternate holiday period thereafter.

f. For the purpose of the immediately preceding Order, the father shall collect the child from the mother’s place of residence at the commencement of each such school holiday period and return the child to the mother’s place of residence at the conclusion of each such period of time.

g. That the father’s time with the child during school term shall recommence:-

i. On the first weekend of school term where the father spent time with the child for the first half of the immediately preceding school holidays; and

ii. On the second weekend of school term where the father spend time with the child for the second half of the immediately preceding school holidays.

h. For the purpose of these orders:-

i. The first half of school holiday periods shall mean the period commencing at 10.00 am on the morning immediately following the last day of term, and concluding at 6.00 pm, extending to 7.00 pm during E.D.S.T., on the day marking the midpoint of that holiday period; and

ii. The second half of school holiday periods shall mean the period commencing at 10.00 am on the day marking the midpoint of that holiday period and concluding at 6.00 pm, extending to 7.00 pm during E.D.S.T., on the Saturday immediately prior to the commencement of the next ensuing school term, extending to Sunday in the event that Monday is a pupil-free day.

i. In the event that the child’s birthday falls upon a school day then the father shall spend time with the child from after school until 7.00 pm.

j. For the purpose of the immediately preceding Order, the father shall collect the child from school and return the child to the mother’s place of residence at the conclusion of such period of time.

k. If the child’s birthday falls upon a weekend or during a part of school holidays when the father is not spending time with the child, then the father shall collect the child from the mother’s place of residence at 3.00 pm and return the child to the mother’s place of residence at 7.00 pm.

l. In the event that Father’s Day falls on a weekend when the father would not otherwise spend time with the child, then the father shall spend time with the child, otherwise in accordance with these Orders, on the weekend during which Father’s Day falls and will not spend time with the child on the next occasion that would otherwise be his time with the child.

m. In the event that Mother’s Day falls on a weekend when the mother would not otherwise have the child with her in accordance with these Orders, then the father shall not spend time with the child on that weekend but shall spend time with the child, otherwise in accordance with these orders, on the next immediately following weekend.

That the parent with whom the child is not living, or spending time, on the 25 December in any year, shall spend time with the child from 7.00 pm on 25 December until 7.00 pm on 26 December.

That the parent with whom the child is to spend time pursuant to the immediately preceding Order, shall collect the child from the other parent’s place of residence at the commencement of such period and shall return the child to that place of residence at the conclusion of the period of time.

That the child shall have telephone contact with the party whom she is not living with or spending time with, as follows:

a. When the child is living with the mother, telephone contact between the child and the father shall occur each Tuesday and Thursday; and

b. When the child is spending time with the father, telephone contact between the child and the mother shall occur each Saturday.

That, unless the parties shall otherwise agree, the child shall remain enrolled at, and attend, C Region School. The father shall pay school fees in respect of the child’s schooling at that institution promptly as they fall due and payable.

10.

That the parties each sign all documents and give all authorities to ensure that the father receives all documents that would normally be received by a parent of a child attending that school. Any additional costs thereby incurred shall be borne by the father.

11.

That both parties shall be entitled to attend upon all school functions normally attended by parents of children at that school.

12.

That both parties shall at changeovers, at any school function or in any situation when they shall find themselves in the company of each other deal with the other in an appropriate, non-abusive and non-threatening manner.

13.

That, save and except for the purpose of collecting and returning the child from and to the mother in accordance with these Orders, the father shall not approach or enter upon any premises from time to time occupied by the mother.

14.

That the mother shall not discuss with the child or any other person the father or members of his family in the presence or hearing of the child.

15.

That whilst the child is in the household of either party, that party shall not denigrate the other party, or family members of the other party, in the presence or hearing the child, nor permit, cause, allow or encourage any other person to do so.

16.

That the mother shall not in any discussions with the child or in the hearing or presence of the child make any reference to the sexual abuse allegations nor shall she refer to the prospect of the father being imprisoned.

17.

That each party shall keep the other informed of their residential address or residential addresses and telephone numbers, both landline and mobile as the case may be. In the event of any change, the party affecting such change shall notify the other party in writing within seven (7) days of such change.

18.

That the mother shall not permit, encourage or allow the child to refer to any person other than the father as “Daddy” or “Dad” or any other diminutive or nickname for father.

19.

That the mother commence, undertake and complete an appropriate course of therapy with a counsellor or psychologist. If referred by a medical practitioner, the mother shall consult a psychiatrist for assistance in dealing with her fears.

20.

That both parties enrol in, participate in and complete a program, Parenting after Separation, or such similar course or program as soon as can be arranged, and in the event such a program is not available, then such other course as recommended by the Independent Children’s Lawyer. This order does not require the parties to attend upon the same course at the same time.

21.

That if either party is to remove the child from their current residential address, and in the father’s case this would include either his Canberra or C Region address, for a period of longer than seven (7) days, that party shall notify the other party of such intention together with an itinerary.

22.

That each of the parties shall ensure that a photograph of the other party is kept and maintained in the child’s bedroom or room occupied by the child in that parties’ home.

23.

That the mother make the child available to the Independent Children’s Lawyer within seven (7) days of the date of these Orders for the purpose of the Independent Children’s Lawyer explaining the nature and effect of these Orders to the child.

24.

That all outstanding applications and cross applications be and are hereby dismissed.

25.

That all issues be removed from the pending cases list.

26.

That all material produced upon subpoena be returned not before fifty-six (56) days from the date of these Orders.

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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