KING-RAINE & RAINE - [2010] FamCA 10

FAMILY COURT OF AUSTRALIA

KING-RAINE & RAINE

[2010] FamCA 10

FAMILY LAW – CHILDREN – parental responsibility – with whom a child lives – with whom a child spends time - with whom a child communicates – allegations of family violence

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 60CA, 61C, 61DA and 68B

APPLICANT:

Ms King-Raine

RESPONDENT:

Mr Raine

INDEPENDENT CHILDREN’S LAWYER:

Mr Harman

FILE NUMBER:

PAC

843

2007

DATE DELIVERED:

19 January 2010

PLACE DELIVERED:

Hobart

PLACE HEARD:

Parramatta

JUDGMENT OF:

Benjamin J

HEARING DATE:

14, 15 & 16 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Foster

SOLICITOR FOR THE APPLICANT:

Valenti & Valenti

COUNSEL FOR THE RESPONDENT:

Ms R Winfield

SOLICITOR FOR THE RESPONDENT:

Graeme J. Peters

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr J Harman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Joe Harman, Family Dispute Resolution

Orders

All previous parenting orders regarding the child S born … April 2004 (“the child”) are discharged.
The parties each have parental responsibility pursuant to s 61C of the Family Law Act 1975 (Cth) except in respect of issues as to which school the child attends and any major medical procedure, these issues are the subject of equal shared parental responsibility between the parents. Notwithstanding this order the wife is permitted to enrol the child in H School in western Sydney commencing January 2010.
The child shall live with the mother.
The child shall spend time with the father as follows:-
a)during school term for the school years 2010 and 2011; two weekends with the father followed by one weekend with the mother then two weekends with the father followed by a weekend with the mother and so on; such contact times to commence on the second weekend after the commencement of the 2010 and 2011 school years and the first weekend after each of the mid year school holiday periods. The times shall be after school Friday until 5.00 pm Sunday, with the father to collect the child from after school on the Friday commencing his weekends and return the child to … (“the Contact Centre”) at the conclusion of his time.
b)during school term from commencement of term 1 in 2012 onwards, each second weekend from after school on Friday to the commencement of school on Monday or the commencement of school on Tuesday if Monday is a pupil free day.
c)the first half of each of the New South Wales school holiday periods being from 10.00 am on the first Saturday of the holiday period (or the first non-school day if the holidays do not commence on the Saturday) until 4.00 pm on the middle period of that Saturday;
d)from the conclusion of school on Friday until 5.00 pm on Sunday for Father’s Day weekend in each year and provided that if Mother’s Day falls on a weekend when the child would, pursuant to these orders, be living with her father then time for that weekend shall conclude and…

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 KING-RAINE & RAINE

Details

AGLC: KING-RAINE & RAINE [2010] FamCA 10
Case: [2010] FamCA 10
Decision Date: 19 January 2010

CaseChat Overview and Summary

In the matter of KING-RAINE & RAINE, Benjamin J of the Family Court of Australia made orders concerning the parenting of a child, S, born in April 2004. The dispute involved the arrangements for the child's residence, time spent with each parent, and parental responsibility.

The court was required to determine the extent of parental responsibility to be shared between the parents, the specific living arrangements for the child, and the detailed schedule for the child's time with each parent. Further issues included provisions for communication between parents and the child, arrangements for school and medical decisions, and measures to prevent the child's international removal. The court also addressed the use of alcohol by parents, physical discipline, and the denigration of family members in the child's presence.

Benjamin J discharged all previous parenting orders and established new arrangements. The parents were granted equal shared parental responsibility, with specific exceptions for decisions regarding the child's schooling and major medical procedures. The child was ordered to live with the mother, and a detailed schedule for the child's time with the father was set out, including provisions for school terms, holidays, and specific weekends. The court also mandated supervised contact at a Contact Centre for a period, with equal contribution to its costs, and imposed restrictions on the father's alcohol consumption. An Airport Watch List Order was made to prevent the child's removal from Australia.

The court ordered that neither parent shall physically discipline the child or denigrate the other parent or their family members in the child's presence. Furthermore, neither parent is to use or be affected by alcohol while the child is in their care. The parties were enjoined from commencing new proceedings without leave of the court, except for enforcement or family dispute resolution. The Independent Children's Lawyer was to inform the child of the orders and their appointment was to be discharged six weeks later.

Orders

Orders of the court

All previous parenting orders regarding the child S born … April 2004 (“the child”) are discharged.

The parties each have parental responsibility pursuant to s 61C of the Family Law Act 1975 (Cth) except in respect of issues as to which school the child attends and any major medical procedure, these issues are the subject of equal shared parental responsibility between the parents. Notwithstanding this order the wife is permitted to enrol the child in H School in western Sydney commencing January 2010.

The child shall live with the mother.

The child shall spend time with the father as follows:-

a) during school term for the school years 2010 and 2011; two weekends with the father followed by one weekend with the mother then two weekends with the father followed by a weekend with the mother and so on; such contact times to commence on the second weekend after the commencement of the 2010 and 2011 school years and the first weekend after each of the mid year school holiday periods. The times shall be after school Friday until 5.00 pm Sunday, with the father to collect the child from after school on the Friday commencing his weekends and return the child to … (“the Contact Centre”) at the conclusion of his time.

b) during school term from commencement of term 1 in 2012 onwards, each second weekend from after school on Friday to the commencement of school on Monday or the commencement of school on Tuesday if Monday is a pupil free day.

c) the first half of each of the New South Wales school holiday periods being from 10.00 am on the first Saturday of the holiday period (or the first non-school day if the holidays do not commence on the Saturday) until 4.00 pm on the middle period of that Saturday;

d) from the conclusion of school on Friday until 5.00 pm on Sunday for Father’s Day weekend in each year and provided that if Mother’s Day falls on a weekend when the child would, pursuant to these orders, be living with her father then time for that weekend shall conclude and the child shall be returned to the mother at the Centre 15 minutes after opening time on that day (Mother’s Day).

e) such further and/or other periods as are agreed by the parties from time to time.

During school term the child is to be collected by the father from school on a Friday afternoons and from term 1 in 2012 returned to school on a Monday. At all other times the child is to be collected and returned to the mother at the Contact Centre. If the Contact Centre is not open then such other public place as is agreed in writing between the parents.

a) Each party shall contact the Contact Centre within seven (7) days and:

i) arrange an appointment for assessment for suitability for supervised time;

ii) attend the assessment;

iii) comply with any appointments made by the Contact Centre for supervised time;

iv) comply with all reasonable rules of the Contact Centre; and

v) comply with all reasonable requests and direction of the staff of the Contact Centre.

b) If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on the giving of fourteen (14) days written notice to the other party and to the Court (liberty to relist the matter to apply twelve (12) months from the date of this order).

c) The Contact Centre may recommend the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three (3) days notice to the other party and to the Court (liberty to relist the matter to apply twelve (12) months from the date of this order).

d) If the centre finishes before 5pm then the return time shall be 15 minutes before the Centre closes.

The parties shall contribute equally to the cost of the Contact Centre.

Each of the child’s parents shall be entitled to communicate with the child by telephone when the child is in the care of the other parent between 6.30 pm and 7.00 pm each Tuesday, Thursday and Saturday.

In relation to the times of collection and return of the child to spend time with the father, for the period from the date of these orders until the end of the child’s first term at school on 1 April 2010:-

a) when the child is with the father they shall reside at the home of the paternal grandparents (or either of them); and

b) the collection and return of the child shall be supervised by either of the child’s said paternal grandparents or such other person as is agreed in writing between the parents but excluding Mr KA.

The father shall not use alcohol or be affected by alcohol whilst the child is in his care or under his supervision.

10.

Each party shall keep the other informed as to their respective mobile telephone number, address and shall notify the other party forthwith upon any change of their address or telephone number provided that neither party shall attend the other’s address or contact the other by telephone save pursuant to these orders.

11.

Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the child and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the child if hospitalised.

12.

The parties shall each authorise the child’s school to provide the other party with notices, reports and newsletters and notes relating to the child’s school events and activities.

13.

This Airport Watch List Order shall expire on 10 April 2016 or such other time as determined by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).

a) The Court requests that the Australian Federal Police place the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.

b) The Marshall of the Family Court and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

c) The Independent Children’s Lawyer shall as soon as possible provide a copy of these orders to the Marshal and to the Australian Federal Police.

14.

Neither party use nor be affected by alcohol whilst the child is in their care or supervision.

15.

Neither party shall physically discipline the child.

16.

Neither party denigrate the other or members of the other family in the presence or hearing of the child.

17.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

18.

Each of the parties are enjoined pursuant to s 68B of the Family Law Act from commencing proceedings in any court exercising jurisdiction under the Family Law Act without first obtaining leave of the Court to commence such proceedings. This order is not intended to operate in relation to any application for enforcement of order nor is it intended to prevent parties from attending or being involved in family dispute resolution before commencing proceedings.

19.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

20.

The Independent Children’s Lawyer will inform the child of these orders within seven (7) days of the date of these orders.

21.

The appointment of the Independent Children’s Lawyer be discharged six (6) weeks from the date of these orders.

IT IS CERTIFIED

22.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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