FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LACERRA and DALLEY & VALENTINE | [2012] FMCAfam 414 |
| FAMILY LAW – Children’s orders between father and maternal grandmother and maternal aunt – mother deceased – whether child should be included on the PACE alert list. |
| Family Law Act 1975, ss.4, 60B, 60CC, 65C, 60CA, 64C, 61DA, 65DAC, 65DAA, 62G, 65Y |
| Goode & Goode (2006) FLC 93-286 Marvel [2010] FamCAFC 101 MRR & GR [2010] HCA 4 Pitken & Hendry [2008] FamCA 186 Dylan & Dylan [2007] FamCA 842 Mabo v Queensland [1992] HCA 23 Minister of Ethnic Affairs v Teoh [1995] HCA 20 B & B and Minister of Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621 Browne & Dunn (1893) 6 R 67 (HL) Glaser v The United Kingdom [2000] UCHR Application 32346/96 |
| Applicants: | MS LACERRA & MS DALLEY |
| Respondent: | MR VALENTINE |
| File Number: | PAC 2473 of 2011 |
| Judgment of: | Harman FM |
| Hearing dates: | 29 and 30 March 2012 |
| Date of Last Submission: | 30 March 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 2 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Judge |
| Solicitors for the Applicant: | John Spence & Associates |
| Counsel for the Respondent: | Mr Glissan |
| Solicitors for the Respondent: | AKN & Associates |
ORDERS
All prior parenting orders with respect to child X born (omitted) 2004 (save orders made 30 March 2012) shall be and are herby discharged.
X shall live with her father Mr Valentine.
X shall spend time with applicants being the maternal grandmother Ms Dalley. and applicant maternal Ms Lacerra as follows;
(a)If and when X is residing in Sydney
(i)Each third Sunday during school terms from 9 am to 6 pm such periods to commence on the second Sunday of each school term;
(ii)For the second half of each short New South Wales school holiday period from 6pm on the Friday proceeding the middle weekend of the holiday period until 6pm on the last Friday of holiday period;
(iii)For a two week block during the New South Wales Christmas school holidays each year and being from 6pm boxing day until 6pm 9 January.
(b)Whilst so ever the child is residing outside of the Sydney metropolitan area;
(i)For the second half of each short Victorian school holiday period from the second Friday thereof and until the last Friday of holiday period;
(ii)For a 14 day block period in each Victorian Christmas school holiday period and being
A.For the school holidays commencing December 2012 and each alternate year thereafter for a 14 day block commencing on the day after school breaks up and concluding 14 days later (and which in 2012 would commence 22 December, 2012 and conclude 5 January, 2013); and,
B.For the school holidays commencing December 2013 and each alternate year thereafter for a 14 day block period to commence on the third last Sunday and conclude on the last Sunday of the school holidays;
and with respect to the above periods X shall travel from Melbourne to Sydney and from Sydney to Melbourne at the commencement and conclusion…
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- Case
- [2012] FMCAfam 414
- Decision Date
CaseChat Overview and Summary
The court carefully considered the evidence and submissions from all parties. It found that it was in the best interest of the child for her to primarily reside with her father but to have significant visitation time with the applicants. The court set out detailed arrangements for the child's time with the applicants, specifying different periods during school terms and holidays, depending on the child's place of residence. The court also established protocols for the applicants to collect the child from the father's residence and return her, along with detailed instructions for air travel logistics when the child resides outside the Sydney metropolitan area. Additionally, the court ordered that the father must facilitate the child's communication with the applicants and the forwarding of school reports to them.
The court issued comprehensive orders to ensure the effective implementation of the parenting arrangements. These orders included provisions for the removal of the child's name from the airport watch list once the appeal period had expired and no appeal was lodged, and for the return of exhibits and subpoenaed materials. The court also addressed the issue of denigration and restraining orders to protect the child from being exposed to any negative comments about the other party. Finally, the court made clear that the father retains sole parental responsibility for the child, subject to the outlined orders.
Orders
Orders of the court
1.
All prior parenting orders with respect to child X born (omitted) 2004 (save orders made 30 March 2012) shall be and are herby discharged.
2.
X shall live with her father Mr Valentine.
3.
X shall spend time with applicants being the maternal grandmother Ms Dalley. and applicant maternal Ms Lacerra as follows;
(a) If and when X is residing in Sydney
(i) Each third Sunday during school terms from 9 am to 6 pm such periods to commence on the second Sunday of each school term;
(ii) For the second half of each short New South Wales school holiday period from 6pm on the Friday proceeding the middle weekend of the holiday period until 6pm on the last Friday of holiday period;
(iii) For a two week block during the New South Wales Christmas school holidays each year and being from 6pm boxing day until 6pm 9 January.
(b) Whilst so ever the child is residing outside of the Sydney metropolitan area;
(i) For the second half of each short Victorian school holiday period from the second Friday thereof and until the last Friday of holiday period;
(ii) For a 14 day block period in each Victorian Christmas school holiday period and being
A. For the school holidays commencing December 2012 and each alternate year thereafter for a 14 day block commencing on the day after school breaks up and concluding 14 days later (and which in 2012 would commence 22 December, 2012 and conclude 5 January, 2013); and,
B. For the school holidays commencing December 2013 and each alternate year thereafter for a 14 day block period to commence on the third last Sunday and conclude on the last Sunday of the school holidays;
and with respect to the above periods X shall travel from Melbourne to Sydney and from Sydney to Melbourne at the commencement and conclusion of each period respectively and to depart each airport on a flight at or approximate to 6pm.
4.
For the purpose of implementing the above orders as to X’s time with the applicants if she resides the Sydney Metropolitan Area, one of the applicants or their agent is to collect the child from the father’s residence and return the child to the father residence.
5.
For the purpose of implementing the above orders as to X’s time with the applicants when X is residing outside the Sydney Metropolitan area;
(a) The applicants or either one of them, are to provide to the father by ordinary pre paid post at Property V or email at (omitted) the child’s air travel itinerary to Sydney, paid for by the applicants, no later than 28 days prior to the booked departure date
(b) The Respondent is to deliver the child X to the airport from which she is booked to travel to Sydney in time to ensure that she is able to board the flight booked for her by the Applicants or either one of them and is to do all acts necessary to ensure that the child boards the flight.
(c) The applicants or either one of them is to collect the child from Sydney airport on her arrival there for the purpose of commencing time to be spent with them.
(d) At the conclusion of their time spent with the child the applicants or either of them are to do all acts necessary to ensure that the child is delivered to Sydney airport in time to board the return flight and are to ensure that the child boards the return flight
(e) Should the father fail to place the child on the flight to Sydney as provided for herein the father is to pay the applicants the amount of the airfare lost and is to do all things necessary to ensure that the child is forthwith delivered to the Applicants or either of them for the purpose of them spending time with the child and the child with them including booking a fresh fare for travel that day or the next and X’s time with the applicants shall extend by such period as is necessary to ensure that X spends an equivalent period of time with the applicants as these orders provide.
(f) Should the applicants fail to provide the flight ticketing details within the time period provided for in these order the Respondent is not obliged to provide the child to the Applicants for the purpose of the child spending time with them on that occasion.
6.
In the event that the father should change his and X’s place of residence to any place other than the Sydney metropolitan area or Victoria then the reference to school holidays in the above orders shall thereafter be taken to refer to school holidays for the State or Territory in which X is then residing
7.
The Respondent shall do all acts and things necessary including dialling the phone number to facilitate, cause and ensure that the child X telephone the landline telephone number of the second applicant Ms Dalley. being number (omitted) on each Sunday between 5pm and 6pm.
8.
All parties are to advise the other in writing or via email of their current residential address and contact number and email address and are to advise the other of any change of residential address, phone number or email address at least one week prior to any proposed change.
9.
The Father shall forthwith sign all documents and do all acts and things necessary to provide to the Principal of the child’s current school and any future school attended by her an irrevocable authority in writing requesting the Principal to arrange to forward to the Applicants copies of the child’s school reports and any information relating to the child progress at school and/or requested by the applicants and:.
(a) In the event of the child changing school the father is to provide an irrevocable authority in the same terms to the Principal of the child’s new school.
(b) The father is to provide to the applicants a copy of any irrevocable authority executed pursuant to this order within 72 hours of its execution.
10.
The applicants and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children X born (omitted) 2004 (female) from the Commonwealth of Australia.
11.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
12.
The Commissioner of the Australian Federal Police is requested to take all necessary steps to immediately place the said children name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia and, further the Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia are requested to:
(a) Maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.
(b) Assist in the implementation of, and give effect to, these orders.
13.
Each party is to notify the other promptly of any major medical illness or hospitalisation suffered by the child including details of treatment by medical practitioners.
14.
All parties are restrained from denigrating the opposing party or causing any third party to denigrate the opposing party, in the present and hearing of the child.
15.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
16.
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.
NOTATIONS:
17.
For the Easter 2012 school holidays and not withstanding anything to the contrary expressed above, X shall spend time with the applicant from 30 March to 6 April 2012 inclusive and in accordance with orders made 30 March 2012.
18.
The Independent Children’s Lawyer is not obliged to make any application for contribution of costs and accordingly no such application has been made nor adjudicated upon.
19.
Pursuant to the Family Law Act 1975 (and subject to the balance of these orders) Mr Valentine is the sole person entitled to exercise parental responsibility for X as X’s sole living parent.
20.
X presently resides with her father in the Melbourne area and the father intends to continue to reside in that area and with respect to same no restraint upon the father’s place of residents (other than through the requirement to keep the applicants advised of that address) is included in 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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