Mitty and Mitty - [2010] FamCA 718

FAMILY COURT OF AUSTRALIA

MITTY & MITTY [2010] FamCA 718

FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time – relocation interstate

Family Law Act 1975 (Cth)

APPLICANT: Ms Mitty

RESPONDENT: Mr Mitty

FILE NUMBER: SYC 8326 of 2007

DATE DELIVERED: 26 July 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 19 – 23 July 2010
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Ms Gordon

THE RESPONDENT: Mr Mitty in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Makare
Orders
(1)That the Mother has sole Parental Responsibility for the Children namely, H born … March 2003, L born … June 2005 and S born … December 2006.
(2)That the Children shall live with the Mother.
(3)Subject to fulfilling the condition set out in Order 6 hereof, the Mother is permitted to relocate the children’s residence to Queensland.
(4)That for a minimum period of three (3) months, commencing from the date of these Orders (or so soon thereafter as may reasonably be arranged), the parents each forthwith attend upon an individual counsellor for family counselling to assist them in the implementation of these Orders. The counsellor is to be approved or nominated by the Independent Children’s Lawyer. The parents are each hereby authorised and directed to show to each counsellor a copy reason for judgement and/or Dr RO’s reports. The parents must:
a)   attend the first appointment nominated by the counsellor;
b)     promptly pay the counsellor’s reasonable fees for each appointment; and
c)     attend all subsequent counselling appointments the counsellor reasonably nominates during the said three month period.
(5)That within three (3) months from the date of these Orders the father is to complete a Parenting After Separation Course and provide to the Independent Children’s Lawyer a copy of the associated certificate of completion.
(6)It is a condition precedent to the mother being permitted to relocate the children’s residence to Queensland that she forthwith contact the P Child and Family Support Contact Centre and promptly do all things necessary to register herself and the children to participate in the centre supervising time for the father to spend with the children at that centre as is required by these Orders.
(7)The father shall communicate and spend time with the children as follows:
a)   Via telephone each Tuesday at 6pm, with the father to call a telephone number nominated by the Mother.
b)     Each of the children’s birthdays at 6pm, with the father to call a telephone number nominated by the mother.
c)     The father is to spend time with the children, under supervision at the P Child and Family Support Contact Centre located at P in the state of Queensland, or such other supervisors as may be agreed between the parties on one day each fortnight, or at times (no more frequent than fortnightly) as otherwise directed by the P Child and Family Support Contact Centre. To facilitate such time each party must:

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 Mitty and Mitty

Details

AGLC: Mitty and Mitty [2010] FamCA 718
Case: [2010] FamCA 718
Decision Date: 26 July 2010

CaseChat Overview and Summary

In Mitty and Mitty, Justice Le Poer Trench of the Family Court of Australia determined parenting orders concerning the children H, L, and S. The dispute involved the mother's application to relocate the children to Queensland and the father's parenting arrangements.

The court was required to determine the primary caregiver for the children, where the children would reside, and whether the mother should be permitted to relocate them to Queensland. Further issues included establishing appropriate communication and time arrangements between the father and the children, including supervised contact and future unsupervised time, as well as addressing the parents' ongoing communication and the appointment of an Independent Children's Lawyer.

Justice Le Poer Trench ordered that the mother have sole parental responsibility and that the children live with her. The mother was permitted to relocate the children to Queensland, subject to fulfilling a condition requiring her to register for supervised contact at a specified centre. The father was to have supervised contact at this centre for a period, followed by progressively increasing unsupervised time, including regular weekend and holiday contact. The orders also mandated family counselling for the parents, a parenting after separation course for the father, and imposed restrictions on the parents denigrating each other in the children's presence. The court also made orders by consent restraining further proceedings without leave and noted undertakings from the father regarding child support and communication.

Orders

Orders of the court

(1) That the Mother has sole Parental Responsibility for the Children namely, H born … March 2003, L born … June 2005 and S born … December 2006.

(2) That the Children shall live with the Mother.

(3) Subject to fulfilling the condition set out in Order 6 hereof, the Mother is permitted to relocate the children’s residence to Queensland.

(4) That for a minimum period of three (3) months, commencing from the date of these Orders (or so soon thereafter as may reasonably be arranged), the parents each forthwith attend upon an individual counsellor for family counselling to assist them in the implementation of these Orders. The counsellor is to be approved or nominated by the Independent Children’s Lawyer. The parents are each hereby authorised and directed to show to each counsellor a copy reason for judgement and/or Dr RO’s reports. The parents must:

a) attend the first appointment nominated by the counsellor;

b) promptly pay the counsellor’s reasonable fees for each appointment; and

c) attend all subsequent counselling appointments the counsellor reasonably nominates during the said three month period.

(5) That within three (3) months from the date of these Orders the father is to complete a Parenting After Separation Course and provide to the Independent Children’s Lawyer a copy of the associated certificate of completion.

(6) It is a condition precedent to the mother being permitted to relocate the children’s residence to Queensland that she forthwith contact the P Child and Family Support Contact Centre and promptly do all things necessary to register herself and the children to participate in the centre supervising time for the father to spend with the children at that centre as is required by these Orders.

(7) The father shall communicate and spend time with the children as follows:

a) Via telephone each Tuesday at 6pm, with the father to call a telephone number nominated by the Mother.

b) Each of the children’s birthdays at 6pm, with the father to call a telephone number nominated by the mother.

c) The father is to spend time with the children, under supervision at the P Child and Family Support Contact Centre located at P in the state of Queensland, or such other supervisors as may be agreed between the parties on one day each fortnight, or at times (no more frequent than fortnightly) as otherwise directed by the P Child and Family Support Contact Centre. To facilitate such time each party must:

i. Contact the P Child and Family Support Contact Centre within seven (7) days to arrange an appointment for assessment for suitability

ii. Attend the assessment

iii. Comply with any appointment made by the P Child and Family Support Contact Centre.

iv. Comply with all reasonable rules of P Child and Family Support Contact Centre.

v. Comply with all reasonable requests or directions of the staff of the P Child and Family Support Contact Centre.

vi. The parties shall each pay the fees nominated by the P Child and Family Support Contact Centre for the provision of its service.

d) the father’s supervised time with the children at the P Child and Family Support Contact Centre may be on a weekend or a week day. The determination in relation to the day of contact to be made by the Contact Centre on the basis of the next available day for contact to commence upon the parties complying with Order 6(c)(i).

(8) After three(3) months of the father spending time with the children as set out in Order 7 the father spend time with the children as follows:

a) On the first weekend of each month from 12noon on Friday until 12noon on Sunday. The father is to cause the children to telephone the mother prior to going to bed for the evening on the first evening of each block of time the children spend with the father.

b) Where a gazetted Queensland long weekend falls on a date where the father is to spend time with the children in accordance with the provisions of Order 8 (a), and that long weekend is inclusive of a Monday, then Order 8(a) is suspended for the period of that long weekend and the father is to spend time with the children from 12noon on Saturday until 12noon on Monday. The father is to cause the children to telephone the mother on Saturday prior to going to bed.

c) For one week in the December 2010 school holidays to commence at 12noon on the first day after the public school term ceases and changeovers shall occur at 12noon seven (7) days after commencement.

d) Commencing in 2011, during school holiday periods for one (1) week of the April, July and September public school holidays, such weeks to be agreed between the parties and in the absence of agreement for the first half of each of these school holiday periods.

e) Commencing in 2011 for half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.

(9) For the purpose Order 8 the school term and Christmas school holidays are deemed to commence at 12noon on the first day after the public school term ceases and changeovers shall occur at 12noon on the day in the middle of the school holiday period.

(10) For the purpose of Orders 8 inclusive, contact changeover will occur at the P Family Relationship Centre, with the party collecting the children paying for any costs associated with changeover, or any other place as agreed between the parties.

(11) For the purposes of the father spending overnight time with the children pursuant to Order 8 the father shall exercise overnight time at the home of the paternal grandmother Mrs Mitty (Snr), located in the north of the State of New South Wales or in the alternative at the home of the paternal Uncle B Mitty.

(12) Each party shall advise the other as soon as practicable of any medical treatment or medical emergency affecting the children during any period of time that the children are in that parties care.

(13) The mother shall provide an authority to each of the children’s treating medical professional, authorising that professional to provide to the father information regarding the children’s treatment, referrals, medication and any other information regarding the children’s medical history.

(14) The mother shall provide an authority to the children’s pre-school, kindergarten or school authorizing the provision of information to the father including school photograph Order forms and reports.

(15) Each party is restrained from denigrating the other, or discussing the current proceedings, in the presence or hearing of the children and from causing or allowing any third person to denigrate the other party in the presence or hearing of the children.

(16) Each party forthwith provide to the other party details of current contact telephone numbers and should there be any change in the future expeditiously provide the new number.

(17) The appointment of the Independent Children’s Lawyer be extended for a period of four (4) months from the date of these Orders.

(18) The application for costs sought by the Independent Children’s Lawyer is dismissed.

(19) Should the father either currently have a computer with the capacity to run video conferencing (sometimes referred to as Skype) or in the future acquire such a computer and should he notify the mother by email of his desire to have his weekly telephone call with the children occur by medium of video conferencing then the mother is to use her best endeavor’s to facilitate such communication for all of the children.

(20) By consent, I make Orders as per exhibit X4 as set out hereunder:

WITHOUT ADMISSIONS

1. That other than any application pursuant to section 94 of the Family Law Act, and pursuant to section 118(1)(c) of the Family Law Act, each of the father and mother be and are hereby restrained from commencing any further proceedings under the Family Law Act against the other, without first obtaining leave from a Judge of the Family Court of Australia.

2. Such leave as provided in Order 1 must be sought in the first instance by an ex-parte application supported by affidavit, and if leave is granted then any application the subject of the application for leave be filed and served in accordance with the Rules.

(21) Should the parties need to communicate with each other then they are to do so by email unless it is an emergency.

(22) The father’s application for an Order preventing the children being removed from Australia is dismissed.

(23) Pursuant to section 65DA(2) and s62B of the Family Law Act, 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.

(24) I note that the proceedings are now concluded in this Court.

(25) All Outstanding Applications are dismissed and the proceedings are removed from the List of Matters awaiting finalisation.

NOTATION

A) The Court notes the content of a document signed by each of the parties on 23 July 2010 following the rising of the court at the conclusion of the hearing on that day. The Court notes that there was no application for a departure Order made to the Court and in the circumstances the court accepts the document (now marked as exhibit X5) as an undertaking by the father to the court.

B) The Court notes that the father gives the following undertaking to the Court:

The father undertakes to pay the mother $200 per week as child support, starting 1 August 2010 and payable at the end of each month to an account nominated by the mother.

(1)

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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