D’Abreo and Cantwell - [2011] FMCAfam 1504

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D’ABREO & CANTWELL

[2011] FMCAfam 1504

FAMILY LAW – Competing parenting applications – allegations of serious domestic violence – lack of affidavit evidence of domestic violence.

Family Law Act 1975, ss.4, 60B, 60CA, 61DA, 65F, 69ZX, 69ZW, 65DAC, 65DAA, 60CC, 91B, 117

Browne & Dunn (1893) 6 R 67 (HL)
Goode & Goode (2006) FLC 93 – 286
Marvel & Marvel [2010] Fam CAFC 101
Minister of Immigration v Teoh (1995) 183 CLR 273
B & B and Minister of Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621
Johnson & Page [2007] FamCA 1235
Mazorski & Albright [2007] FamCA 520
Jones & Dunkel (1959) 101 CLR 298
Casley & Casley (costs) [2010] FamCAFC
JJT ex Parte Victorian Legal Aid [1998] FLC 92 - 812

Applicant:

MR D'ABREO

Respondent:

MS CANTWELL

File Number:

PAC 2668 of 2010

Judgment of:

Harman FM

Hearing dates:

28, 29, 30 November 2011and

12 December 2011

Date of Last Submission:

12 December 2011

Delivered at:

Parramatta

Delivered on:

21 December 2011

REPRESENTATION

Counsel for the Respondent:

Mr Cooke

Solicitors for the Respondent:

Adams & Partners Lawyers

ORDERS

That all prior parenting orders with respect to the children:
X born (omitted) 1996; and,
Y born (omitted) 2004,
shall be and are hereby discharged.
The applicant father, Mr D'Abreo, shall have sole parental responsibility for X and Y.
X and Y shall, as and from 5 pm on 15 January 2012, live with their father.
X and Y shall spend time with their mother:
(a)as regards X, he shall spend such time with his mother as he may arrange and organise with her and in accordance with his wishes;
(b)as regards Y:
(i)from the date of these orders until 5 pm, 15 January 2012;
(ii)as an from the commencement of term 1 2012:
A.For the first half of each short New South Wales School holiday period from no later than midday on the first Saturday until no later than 5 pm on the middle Sunday of the holiday period.
B.For a period of three weeks during the Christmas school holiday period in each year to commence, absent agreement between the parents, no later than 12 noon 27 December and to conclude no later than 12 noon 17 January following.
For the purpose of school holiday time Y is to spend with his mother, Y shall travel between the father and mother by air with the mother to be responsible for arranging booking and paying for those flights not less than 21 days prior to the commencement of each period and each parent shall ensure that Y is then placed on each flight between his parent’s homes and collected from each flight on arrival.
In the event that any child support assessment should issue requiring payment by the mother to the father, then I note that it is intended and the appropriate responsible officer of the child support agency is requested to give effect to such intent, that all costs incurred by…

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 D’Abreo and Cantwell

Details

AGLC: D’Abreo and Cantwell [2011] FMCAfam 1504
Case: [2011] FMCAfam 1504
Decision Date: 21 December 2011

CaseChat Overview and Summary

In the Federal Circuit Court, D’Abreo and Cantwell involved a dispute concerning the parenting arrangements of their two children, X and Y. The primary concern was the allocation of parental responsibility and the detailed time-sharing arrangements between the parents. The court was tasked with determining how the children should live, their schooling, and the conditions under which each parent could spend time with them. The father sought sole parental responsibility and more frequent time with the children, while the mother argued for a more balanced arrangement.

The legal issues before the court included the determination of parental responsibility, the best interests of the children regarding their living arrangements and contact, and the specific terms of the children's time-sharing schedule. The court also needed to consider the implications of the parents' respective living locations and the children's schooling. The court examined evidence and submissions from both parents, the children, and the independent children's lawyer to assess what arrangements would best serve the children's welfare.

The court concluded that sole parental responsibility should be awarded to the father, who would have the primary role in making decisions regarding the children's upbringing. The children would live with the father from 5 pm on 15 January 2012, but would spend specific periods with the mother, including during school holidays. The court detailed the logistics of the children's travel and the conditions under which each parent could communicate with the children. The court also imposed restrictions on the parents' conduct when the children were in their care, including prohibiting alcohol consumption, drug use, and physical discipline. Both parents were required to keep each other informed of their contact details and any significant events concerning the children's health.

The court made several specific orders, including discharging all prior parenting orders, granting sole parental responsibility to the father, and setting out detailed time-sharing arrangements for the mother. The orders also included provisions for communication between the parents and the children, restrictions on the parents' conduct, and requirements for the parents to cooperate in the children's schooling and healthcare. The court further ordered that any costs incurred by the mother in spending time with the children would be credited against child support payments. The court dismissed the application for costs made by the Independent Children’s Lawyer and granted leave for the lawyer to apply for a contribution to their costs from the father.

Orders

Orders of the court

That all prior parenting orders with respect to the children:

X born (omitted) 1996; and,

Y born (omitted) 2004,

shall be and are hereby discharged.

The applicant father, Mr D'Abreo, shall have sole parental responsibility for X and Y.

X and Y shall, as and from 5 pm on 15 January 2012, live with their father.

X and Y shall spend time with their mother:

(a) as regards X, he shall spend such time with his mother as he may arrange and organise with her and in accordance with his wishes;

(b) as regards Y:

(i) from the date of these orders until 5 pm, 15 January 2012;

(ii) as an from the commencement of term 1 2012:

A. For the first half of each short New South Wales School holiday period from no later than midday on the first Saturday until no later than 5 pm on the middle Sunday of the holiday period.

B. For a period of three weeks during the Christmas school holiday period in each year to commence, absent agreement between the parents, no later than 12 noon 27 December and to conclude no later than 12 noon 17 January following.

For the purpose of school holiday time Y is to spend with his mother, Y shall travel between the father and mother by air with the mother to be responsible for arranging booking and paying for those flights not less than 21 days prior to the commencement of each period and each parent shall ensure that Y is then placed on each flight between his parent’s homes and collected from each flight on arrival.

In the event that any child support assessment should issue requiring payment by the mother to the father, then I note that it is intended and the appropriate responsible officer of the child support agency is requested to give effect to such intent, that all costs incurred by the mother in spending time with Y pursuant to these orders is to be credited against such liability.

Notwithstanding the above orders, the father shall be responsible for arranging, booking and paying, for Y’s flight from (omitted)/Canberra to (omitted) on or prior to 15 January 2012.

Each parent should be entitled to communicate with Y by telephone each Tuesday, Thursday and Saturday and with respect to same:

(a) each parent shall ensure that they advise the other and keep the other advised at all times of the telephone number upon which telephone communication with Y shall occur;

(b) each parent shall ensure that that telephone service is free to 7.30 pm each Tuesday, Thursday and Saturday;

Each of the mother and father shall be and are hereby restrained from:

(a) Consuming alcohol to excess whilst soever Y is in their care.

(b) Using any illicit drug or any prescription or patent medical other than in accordance with prescription or recommendations for use during or for seven days prior to any period that Y is to be in their care

(d) Discussing these proceedings or any issue or allegation raised therein or denigrating, insulting or speaking badly of the other parent or X to or in the presence or hearing of Y.

10.

The mother shall do all things within her power to ensure that each of the above restraints is made known to and followed by her partner, Mr B.

11.

Each parent shall keep the other advised at all times of their residential address and the address at which Y will be living whilst in their care and provided, however, that pursuant to s.68B of the Family Law Act 1975, each shall be restrained from approaching or attending at that address or encouraging, directing or commissioning any other person to do so.

12.

Each of the parents shall do all things and sign all documents necessary to:

(a) Affect a transfer of Y’s school enrolment from his present school to such school as he is enrolled in by the father in (omitted).

(b) Ensure that each parents details are recorded with the school to be attended by Y as his parent and emergency contact person

(c) Enable each parent to obtain such information, reports or other materials as the school may issue or offer from time to time.

(d) Each parent shall advise the other forthwith and contemporaneous with the event, of any significant illness, specialist medical appointment or hospitalisation required by or relating to Y or X and shall do all things and give all authorities and consents necessary to enable each parent to speak with any treating health care professional for the purpose of providing information or obtaining advice and to visit Y and/or X if hospitalised.

13.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

14.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

15.

Remove all issues from the list of cases awaiting hearing.

16.

That a copy of these reasons be taken out and made available to the Department of Human Services.

17.

Ms Cantwell shall, on being advised through her attorney, of an appointment time to be arranged, as soon as practicable, present Y to the Canberra Registry of the Federal Magistrates Court for the purpose of these orders being explained to Y and any questions he may have arising from same and as far as the family consultant is able to do so.

18.

Request that the Registry arrange for the file to be forwarded as soon as possible to the Canberra Registry so that it is available for the family consultant to peruse prior to meeting Y. And, in addition, the family consultant who is to meet with Y, is requested to liaise and speak with the independent children's lawyer prior to meeting Y.

19.

Leave is granted to the independent children's lawyer to make oral application for contribution by the father to the Independent Children’s Lawyer’s costs assessed in the sum of $7945.

20.

I dismiss the application for costs made by the Independent Children’s Lawyer.

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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