Mallett and Wharton - [2017] FCCA 1398

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALLETT & WHARTON

[2017] FCCA 1398

Catchwords:
FAMILY LAW – Parenting – two children of the relationship – with whom the children shall live – where the mother relocated without the children – where the mother’s partner has an extensive criminal record – where the father has not supported a relationship between the children and their mother – children live with the father – father have sole parental responsibility – children spend time with the mother.

Applicant:

MS MALLETT

Respondent:

MR WHARTON

File Number:

MLC 9893 of 2015

Judgment of:

Judge Hartnett

Hearing date:	15 February 2017
Further application:	Filed 8 April 2017, determined 19 June 2017
Further application:	Filed 27 April 2017, determined 19 June 2017
Delivered at:	Albury

Delivered on:

23 June 2017

REPRESENTATION

Counsel for the Applicant:

Mr Turner

Solicitors for the Applicant:

Peninsula Law

The Respondent:

In Person

Counsel for the Independent Children's Lawyer:

Ms Hamilton

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

THE COURT ORDERS THAT:

All previous parenting orders be discharged save those made 19 June 2017 which shall continue in full force and effect until the first day of the 2017 Victorian Term 3 school term being the day on which the subject children return to school.
The father have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2009 (‘the children’).
The children live with the father.
The children spend time with the mother as follows:-
(a)For one, up to three day weekend, at the mother’s election during the third school term 2017, and once in each school term in each year thereafter with the mother to collect the children from school on Friday at 3.30pm at commencement and return the children to the father with hand-over to be inside the (omitted) Police Station at conclusion. The concluding time can be on the Sunday or Monday at 5.00pm, at the mother’s election. The mother is to notify the father at least seven days in advance and in writing by text or email of her elections, and the mother shall accommodate the children at such location as she desires. No phone communication between the father and children shall occur unless in an emergency or unless the children or either of them instigate such contact;
(b)for the entirety of the September/October 2017 school term holidays, the mother to collect the children from school in (omitted) on the last day of school and the father to collect the children at conclusion at 2.00pm on the last Saturday before school commences for Term 4 of 2017. The father to collect the children from inside the (omitted) Police Station;
(c)in the 2017/2018 Christmas school holidays and each alternate year thereafter for the first-part of such holidays with the mother to collect the children from school on the last day of the school year and the father to collect the children from inside the (omitted) Police Station at 2.00pm four weeks later;
(d)in the 2018/2019 Christmas…

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 Mallett and Wharton

Details

AGLC: Mallett and Wharton [2017] FCCA 1398
Case: [2017] FCCA 1398
Decision Date: 23 June 2017

CaseChat Overview and Summary

In the matter of *Mallett and Wharton*, heard by Judge Hartnett, the court was asked to determine parenting orders concerning two children, X and Y. The dispute involved the allocation of parental responsibility, living arrangements, and time spent between the children and each parent.

The primary legal issues before the court were to establish sole parental responsibility for one parent, determine the children's primary residence, and delineate the specific arrangements for the children's time with the other parent, including holiday periods and communication protocols. The court was also required to consider provisions for the children's welfare, such as supervision during time with one parent and the exchange of medical and educational information.

Judge Hartnett ordered the discharge of all previous parenting orders, with the exception of those made on 19 June 2017, which were to remain in effect until the commencement of the third school term of 2017. The father was granted sole parental responsibility for the children, and they were ordered to live with him. The mother was granted specific periods of time with the children, including weekend visits, school holidays, and alternate Christmas holiday periods, with detailed arrangements for collection and handover. The court also imposed conditions regarding the mother's attendance during her time with the children, communication between parents and children, and the exchange of information regarding the children's health and education. Furthermore, an injunction was issued restraining both parties from denigrating the other in the presence of the children. The father provided an undertaking to comply with these orders.

Orders

Orders of the court

All previous parenting orders be discharged save those made 19 June 2017 which shall continue in full force and effect until the first day of the 2017 Victorian Term 3 school term being the day on which the subject children return to school.

The father have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2009 (‘the children’).

The children live with the father.

The children spend time with the mother as follows:-

(a) For one, up to three day weekend, at the mother’s election during the third school term 2017, and once in each school term in each year thereafter with the mother to collect the children from school on Friday at 3.30pm at commencement and return the children to the father with hand-over to be inside the (omitted) Police Station at conclusion. The concluding time can be on the Sunday or Monday at 5.00pm, at the mother’s election. The mother is to notify the father at least seven days in advance and in writing by text or email of her elections, and the mother shall accommodate the children at such location as she desires. No phone communication between the father and children shall occur unless in an emergency or unless the children or either of them instigate such contact;

(b) for the entirety of the September/October 2017 school term holidays, the mother to collect the children from school in (omitted) on the last day of school and the father to collect the children at conclusion at 2.00pm on the last Saturday before school commences for Term 4 of 2017. The father to collect the children from inside the (omitted) Police Station;

(c) in the 2017/2018 Christmas school holidays and each alternate year thereafter for the first-part of such holidays with the mother to collect the children from school on the last day of the school year and the father to collect the children from inside the (omitted) Police Station at 2.00pm four weeks later;

(d) in the 2018/2019 Christmas school holidays and each alternate year thereafter for the second part of such holidays commencing at the half way point of the holidays at 12 noon with the mother to collect the children from the (omitted) Police station until the last Saturday of the school holidays at 2.00pm when the father shall collect the children inside the (omitted) Police Station.

(e) commencing in 2018, in the term one and three school term holidays for eight days with the mother to collect the children from school on the last day of school and the father to collect the children on the middle Saturday of the term holidays at 2.00pm from inside the (omitted) Police Station.

(f) commencing in 2018, in the term two school holidays for the duration of the holidays with the mother to collect the children from school on the last day of school and return the children to the father on the last Saturday of the term holidays with changeover inside the (omitted) Police Station.

The mother shall be in attendance throughout all periods of time spent with between herself and the children and shall not leave the children alone with Mr D.

The mother is at liberty to telephone the children at all reasonable times. The father is at liberty to telephone the children on two occasions in each holiday period of time spent with their mother.

The parties advise each other as soon as practicable of any significant illness and/or injury suffered by the children or either of them whilst in their respective care along with the names and contact details of any treating medical, dental and/or allied health professionals so that each parent may liaise with same and receive a copy of any reports prepared in relation to the child or children.

Both parties shall be entitled to receive a copy of all school reports, notices, letters, photograph order forms and correspondence normally provided to parents and shall make their own arrangements with respect thereto.

The parties, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence and/or hearing of the said children, and from permitting any other person so to do.

AND THE COURT NOTES THAT:

A. The father has given an undertaking to the Court to comply with these orders and such undertaking remains operative.

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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