DL and W - [2004] FMCAfam 526

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DL & W

[2004] FMCAfam 526

FAMILY LAW – Children – contact – variation of contact – father’s contact arrangements with his daughter who since the hearing was diagnosed with leukaemia – parental conflict.

NAME OF CHILD – Spelling of child’s first name – change of child’s name – where the mother has unilaterally attempted to change the child’s name to its anglicised version – best interests of the child – cultural importance – whether the Italian version of the child’s first name causes any confusion and embarrassment to the child – allegation the mother has refused to allow the father to exercise contact – best interests of child the paramount consideration.

Family Law Act 1975 (Cth), ss.60B, 65E, 68F

B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755
Chapman v Palmer (1978) 4 Fam LR 462; FLC 90-510
Beach v Stemmler (1979) FLC 90-692
Mahony v McKenzie (1993) FLC 92-204
Flanagan v Handcock (2001) FLC 93-074
Putrino & Jackson (1978) 4 Fam LR 71; FLC 90-441

Applicant:

T D L

Respondent:

A M W

File No:

MLM 2286 of 2003

Delivered on:

6 October 2004

Delivered at:

Parramatta (via telephone link to M)

Hearing Dates:

25 & 26 September and 17 October 2003 and written submissions

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Stoikovska

Solicitors for the Applicant:

Middletons

Counsel for the Respondent:

Mr Hebblewhite

Solicitors for the Respondent:

T J Mulvaney & Co.

Counsel for the Child Representative:

Ms Forster

Solicitors for the Child Representative:

Forster Lawyers & Associates

ORDERS

That all previous parenting orders in respect of the child G E W D L born 8 January 1999 are discharged.
That the Applicant father and the Respondent mother are to retain joint parental responsibility for the long term care, welfare and development of the child G.
That the child G is to live with the mother.
That the parents are to have the responsibility for the day to day care, welfare and development of the child whenever she is in the care of that parent.
The parents are restrained from using any other name or names for the child G other than G E W D L.
The father is to have contact with the child G:
(a)Each alternate weekend during the school term from the conclusion of school on Friday, collection to be from school, or at 5.00 p.m. on Friday when the child does not attend school that day, until the commencement of school on the Monday;
(b)Each Wednesday from the conclusion of school, or at 5.00 p.m. Wednesdays when the child does not attend school that day, until the commencement of school on the Thursday next morning, with the child to be delivered to school, or at 9.00 a.m. on Thursdays when the child does not attend school that day;
(c)For half of the April, June/July and September/October school holiday periods in each year, being the second half of each…

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.

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Details

Case: [2004] FMCAfam 526
Decision Date: 6 October 2004

CaseChat Overview and Summary

In the case of DL and W, the primary focus was on determining parenting arrangements for the child, G E W D L, born on 8 January 1999. The court was tasked with addressing the dispute between the father, the applicant, and the mother, the respondent, concerning the child's care, welfare, and development. The Family Court of Australia was responsible for adjudicating on these matters, considering the welfare of the child as the paramount concern.

The legal issues that the court needed to resolve included the allocation of parental responsibility, the primary residence of the child, and the detailed schedule for contact between the child and the father. The court had to balance the rights and responsibilities of both parents while ensuring the best interests of the child were met. This involved examining the specific contact arrangements, the communication protocols between the parents, and the medical care provisions.

The court concluded that the best interests of the child would be served by discharging all previous parenting orders and establishing new ones. The new orders provided for joint parental responsibility, with the child living primarily with the mother. The father was granted specific contact times, including alternate weekend visits and certain school holiday periods, with detailed schedules for contact changeovers and communication between the parents. The court also emphasised the importance of maintaining the child's medical care and the prohibition of denigrating statements in the child's presence.

The final orders, as outlined in the decision, detail specific arrangements for parental responsibility, contact schedules, communication protocols, and medical care provisions. These orders were designed to ensure that the child's welfare is prioritised and that both parents can effectively co-parent despite their separation.

Orders

Orders of the court

That all previous parenting orders in respect of the child G E W D L born 8 January 1999 are discharged.

That the Applicant father and the Respondent mother are to retain joint parental responsibility for the long term care, welfare and development of the child G.

That the child G is to live with the mother.

That the parents are to have the responsibility for the day to day care, welfare and development of the child whenever she is in the care of that parent.

The parents are restrained from using any other name or names for the child G other than G E W D L.

The father is to have contact with the child G:

(a) Each alternate weekend during the school term from the conclusion of school on Friday, collection to be from school, or at 5.00 p.m. on Friday when the child does not attend school that day, until the commencement of school on the Monday;

(b) Each Wednesday from the conclusion of school, or at 5.00 p.m. Wednesdays when the child does not attend school that day, until the commencement of school on the Thursday next morning, with the child to be delivered to school, or at 9.00 a.m. on Thursdays when the child does not attend school that day;

(c) For half of the April, June/July and September/October school holiday periods in each year, being the second half of each of the said school holiday periods in all even-numbered years commencing in 2004 and the first half of each of the said school holiday periods in all odd-numbered years commencing in 2005;

(d) From 2.00 p.m. on 8 January to 5.00 p.m. on Australia Day in each year;

(e) On the weekend that includes Father’s Day in each year from 5.00 p.m. on the preceding day until 5.00 p.m. on Father’s Day;

(f) On the father’s birthday from the conclusion of school until 7.00 p.m. that day when the birthday falls on a school day or from 5.00 p.m. on the day preceding the birthday until 5.00 p.m. on the birthday when the birthday falls on a non-contact weekend;

(g) From 5.00 p.m. on 23 December 2004 until 5.00 p.m. on Christmas Eve in 2004 and each alternate year thereafter and from 5.00 p.m. on Christmas Eve until 5.00 p.m. on Christmas Day in 2005 and each alternate year thereafter; and

(h) At such other times, if any, as the parties shall agree.

That during school summer holiday periods Wednesday overnight contact is to be suspended.

That weekend contact is to resume on the first weekend following the summer holidays on the same basis as if it had continued throughout the summer holidays.

That the child is to have contact with the Mother on Mother’s Day in each year from 5.00 p.m. on the preceding day until 5.00 p.m. on Mother’s Day.

10.

That when the mother’s birthday falls on a Wednesday then contact on that day shall be suspended.

11.

That when the mother’s birthday falls on a contact Friday the child is to have contact with the mother from the conclusion of school until 7.00 p.m. on that day.

12.

That the parents at all times keep each other informed of their residential address and telephone number and the names of any other person residing at their residences.

13.

That each parent must inform the other parent at least 24 hours in advance of the date when they intend to take the child G out of M but still within the State of Victoria for periods longer than one (1) day and must provide the other parent with an emergency contact telephone number and the address and telephone number of the place at which the child will be staying.

14.

That each parent must inform the other at least seven (7) clear days in advance of the dates when they intend to take the child G out of the State of Victoria and must provide the other parent with an emergency contact telephone number and the address or addresses and telephone number or numbers of the places at which the child will be staying and also with details of any travel by air or sea proposed to be undertaken by the child.

15.

That the mother must arrange for the child G to be administered all inoculations included on the Immunisation Schedule unless the child’s medical practitioner recommends against the administering of all such immunisations and that no inoculations not included on the Immunisation Schedule will be caused to be administered by either parent without the other parent’s written consent.

16.

That the mother and father are hereby restrained from denigrating the other or any member of the other’s family in the sight or hearing or presence of the child and from discussing these proceedings in the child’s sight or hearing or presence.

17.

That the mother establish a general communication book for the purposes of relaying information between the parents about G’s care and both parents be responsible for ensuring the book is packed with G’s belongings for contact changeovers.

18.

In the event that G requires medical treatment, both parents are to be at liberty to attend upon their personal general medical practitioners for general health care and to administer any treatment required in respect of the child’s chemotherapy and other treatment as directed by the health care professionals at the Royal Children’s Hospital.

19.

That each parent must notify the other of any medical appointment for the child within 24 hours of making that appointment.

20.

That the father is to establish a medical communication book between the parents in respect of the child’s appointments at the Royal Children’s Hospital, including medication required and a record of the administering medication.

21.

The mother is to establish a medication pack for the child to be passed from one parent to the other at the time of contact changeover to include all prescriptions and medications to be administered to the child together with the documentation required to record the administration of that medication.

22.

In the event that the child G is to be admitted as an inpatient at the Royal Children’s Hospital, the responsibility for her admission is to remain with the parent who has the child in his or her care at the time. The admitting parent must notify the other parent within half an hour of the child’s admission.

23.

Unless otherwise agreed between the parties, the periods of contact between G and the father whilst the child is an inpatient will occur to the exclusion of the mother and according to the following schedule:

(a) from 6.00 p.m. to 8.00 p.m. on Monday;

(b) from 5.00 p.m. on Tuesday to 9.00 a.m. the following morning;

(d) from 5.00 p.m. to 9.00 p.m. on Thursday;

(e) from 3.00 p.m. on Friday to 10.00 a.m. the following Saturday morning; and

(f) from 6.00 p.m. Saturday to 12 noon on Sunday.

24.

The mother is to have exclusive contact with G at all other times, subject to Order 23.

25.

In the event that it is necessary for G to undergo emergency treatment or non-routine surgery the contact provided by Orders 6 to 11 inclusive will be suspended to allow the presence of both parents subject to any direction that may be given by the health care professionals at the hospital.

26.

The discharge of the child from hospital will be the responsibility of the parent who would otherwise have the child in his or her care at that time and contact will resume in accordance with these Orders upon the child’s discharge from hospital.

27.

Contact changeover in all circumstances where contact is not to commence or conclude at school is to take place inside the McDonald’s Family Restaurant at H or at such other place as the parties may agree.

28.

School holiday contact. For the purposes of Order 6:

(a) School holidays are deemed to commence on the Saturday immediately after school term concludes.

(b) School holidays are deemed to conclude on the day immediately before the first day the child is required to attend school at the commencement of each school term.

(c) A day designated by the child’s school as a “pupil free day” however described is not a day when the child is required to attend school.

(d) Contact for the first half of the April, June/July and September/October school holiday periods will commence at 9.00 a.m. on the Saturday immediately school term concludes and will conclude at 5.00 p.m. on the middle Saturday of the school holiday period.

(e) Contact for the second half of the April, June/July and September/October school holiday periods will commence at 5.00 p.m. on the middle Saturday of the school holiday period and will conclude at 5.00 p.m. on the day immediately before the child is required to attend school at the commencement of the next school term.

29.

Application removed from the list of cases awaiting finalisation.

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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