Morena and Estella - [2013] FamCA 1045

FAMILY COURT OF AUSTRALIA

MORENA & ESTELLA

[2013] FamCA 1045

FAMILY LAW – CHILDREN – with whom the children live – parental responsibility – where father seeks orders for the three subject children to live with him and for the parties to have equal shared parental responsibility – where the mother seeks orders for two of the subject children to live with her – where father alleges that mother is unable to adequately care for the children – finding of domestic violence – s 60CC considerations – MRR v GR – views of the child – mother and father to have equal shared parental responsibility for the child who is to live in the primary care of the father – mother to have sole parental responsibility for the children who are to live in the primary care of the mother – one of the subject children to live with the mother – two of the subject children to live with the father – mother to spend time with the two subject children who shall not live in her primary care on alternate weekends and half of school holidays – father to spend time with the subject child who shall not live in his primary care on alternate weekends and half of school holidays – orders to ensure that the subject children all spend time together during weekend contact.

APPLICANT:

Ms Morena

RESPONDENT:

Ms Estella

INDEPENDENT CHILDREN’S LAWYER:

Ms D. Awyzio, Solicitor

FILE NUMBER:

BRC

10237

2007

DATE DELIVERED:

11 December 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

9 December to 11 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGregor of Counsel appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT:

Legal Aid Queensland

COUNSEL FOR THE RESPONDENT:

The Respondent Husband appearing in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Linklater-Steele of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

DA Family Lawyers

Orders

IT IS ORDERED:

That all previous Parenting Orders be discharged.

That the child, N born on … 2000, shall live with the Father.

That the child, N shall spend time with the Mother at all times as agreed between the parents, and subject to the child’s wishes, but not less than:
a. each alternate weekend from after school on Friday until 5.30 pm on Sunday, to be the same weekend that the children, E born … 2001 and M born … 2006, are in the Mother’s care; and
b. half of the school holiday periods, to be the same time that the children E and M are in the Mother’s care.

On each Thursday prior to the weekend that the child, N is due to spend time with the Mother, the Father will encourage N to spend time with the Mother that coming weekend, by having a positive discussion with N about the upcoming weekend.

That the Mother will only attend to collect the child, N for the purpose of spending time…

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 Morena and Estella

Details

AGLC: Morena and Estella [2013] FamCA 1045
Case: [2013] FamCA 1045
Decision Date: 11 December 2013

CaseChat Overview and Summary

Bell J made orders concerning the parenting arrangements for three children, N, E, and M, following a dispute between their parents, Morena and Estella. The orders discharged previous parenting orders and established new arrangements for the children's living arrangements, time spent with each parent, and parental responsibility.

The court was required to determine the specific living arrangements for each child, the quantum and nature of time each parent would spend with the children, and the allocation of parental responsibility for both major long-term issues and day-to-day matters. Additionally, the court addressed communication protocols between the parents regarding the children, changeover arrangements, and specific prohibitions against denigrating the other parent or discussing court proceedings in the children's presence. The court also mandated a process of family dispute resolution for any future disagreements.

Bell J applied principles of the *Family Law Act 1975* (Cth) to establish parenting orders that aimed to provide for the children's best interests. The orders reflect a nuanced approach, with N's living arrangements and time with the mother being significantly influenced by N's wishes and requiring N's explicit communication via SMS to initiate contact with the mother. In contrast, E and M were ordered to live with the mother, with detailed provisions for their time spent with the father, including specific holiday arrangements and communication methods. Equal shared parental responsibility was ordered for N's major long-term issues, while the mother was granted sole parental responsibility for E and M's major long-term issues. Both parents were to have sole responsibility for non-major long-term issues when the children were in their respective care.

The court ordered the discharge of the Independent Children's Lawyer and annexed a document detailing the obligations and consequences of contravening the parenting orders.

Orders

Orders of the court

IT IS ORDERED:

That all previous Parenting Orders be discharged.

That the child, N born on … 2000, shall live with the Father.

That the child, N shall spend time with the Mother at all times as agreed between the parents, and subject to the child’s wishes, but not less than:

a. each alternate weekend from after school on Friday until 5.30 pm on Sunday, to be the same weekend that the children, E born … 2001 and M born … 2006, are in the Mother’s care; and

b. half of the school holiday periods, to be the same time that the children E and M are in the Mother’s care.

On each Thursday prior to the weekend that the child, N is due to spend time with the Mother, the Father will encourage N to spend time with the Mother that coming weekend, by having a positive discussion with N about the upcoming weekend.

That the Mother will only attend to collect the child, N for the purpose of spending time with him in the event that N sends an SMS text message to the Mother indicating his desire to spend time with her.

That the Father do all acts and things necessary to ensure that the child, N has access to a mobile telephone for the purposes of sending an SMS message to the Mother.

Parental Responsibility

That the Mother and Father have equal shared parental responsibility for the “major long term issues” of the child, N born on … 2000, as defined in the Family Law Act 1975 (as amended).

That the Mother shall have sole parental responsibility for the “major long term issues” of the children, E born on … 2001 and M born on … 2006, as defined in the Family Law Act 1975 (as amended).

That the parents each have, during all such times that the children are in their respective care, sole parental responsibility in respect of issues that are not “major long term issues”.

Where the children shall live/with whom they shall spend time

10.

That the children, E and M shall live with the Mother.

11.

That pursuant to section 67Q(f) of the Family Law Act 1975 the Father shall be prohibited from again removing or taking possession of the children, E and M save for as set out in these Orders.

12.

That the children, E and M shall spend time and communicate with the Father as follows:

a. during school terms, from after school on Friday until 5:30 pm on Sunday each alternate weekend commencing on 31 January 2014;

b. from 9:00 am to 5:00 pm on Father’s Day;

c. from 10:00 am on Good Friday to 5:00 pm on Easter Saturday;

d. for the Christmas period as follows:

i. in odd numbered years, from 2:00 pm on Christmas Day to 10:00 am on Boxing Day;

ii.

in even numbered years, from 10:00 am on Christmas Eve to

2:00 pm on Christmas Day;

e. for the first half of all Queensland gazetted school holiday periods with such time to commence from after school on the last day of the school term and conclude at 5:00 pm on the Saturday which falls half way during the school holidays; and

f. by telephone between 6:30 pm and 7:30 pm on Tuesday and with the Father to initiate the telephone call to the Mother’s mobile telephone.

13.

That following school holiday periods the Father’s alternate weekend time with E and M as per Order 12(a) shall recommence from after school on the first Friday of the school term and continue each alternate week thereafter.

14.

That notwithstanding Order 12 hereof, E and M shall spend time with the Mother as follows:

a. from 9:00 am until 5:00 pm on Mother’s Day;

b. from 5:00 pm on Easter Saturday to 5:00 pm on Easter Monday;

c. for the Christmas period as follows:

i. in odd numbered years from 10:00 am on Christmas Eve to 2:00 pm on Christmas Day;

ii. in even numbered years from 2:00pm on Christmas Day to 10:00 am on Boxing Day; and

d. for the second half of all Queensland gazetted school holidays with such time to commence at 5:00 pm on the Saturday which falls half way during the school holidays and conclude at 9:00 am on the first day of the school term.

15.

That following the children, E and M spending time with the Mother the children’s time with the Father shall resume on the next scheduled occasion in accordance with the usual arrangements pursuant to Order 12.

16.

That the child, N spend time with the Mother at all times as agreed between the parents, subject to the child’s wishes, but not less than:

a. on N’s birthday;

b. on the following special occasions when E and M are spending time with the Mother:

i. on Mother’s Day;

ii. for the Easter period; and

iii. for the Christmas period.

17.

That the parent who is not spending time with either E or M on their birthdays shall be at liberty to spend telephone time with the child, with the parent not spending time to place the call to the other parent’s mobile telephone between 5:00 pm and 6:00 pm if a school day and between 10:00 am and 11:00 am if a non-school day.

18.

That the parents shall notify the other parent as soon as possible if they are unable to spend time with the children in accordance with these Orders.

Changeovers

19.

That changeovers shall occur as follows:

a. at school when they are due to occur at school; and

b. at all other times at the McDonald’s at the C Suburb Shopping Centre.

20.

That the parents shall be at liberty to arrange for a third person who is known to the children to attend at changeover on their behalf provided that they give advance notice to the other parent in writing (including by text message).

Specific Issues

21.

That the parents be, and hereby are, restrained from:

a. denigrating the other parent or that parent’s partner or spouse either directly to or in the presence or hearing of the children;

b. discussing any court proceedings involving the parents or any parenting issues in dispute between the parents either with or in the presence or hearing of the children;

c. physically disciplining the children; and

d. allowing any other person to do any of the above with the parents to promptly remove the children from the presence of the person who is doing so.

22.

That the parents shall keep each other informed of their current residential address, postal address and mobile telephone number.

23.

That the Mother shall be permitted to communicate with the Father about matters concerning the children in the G language.

24.

That the Father shall be permitted to communicate with the Mother about matters concerning the children in the G language.

25.

That the parent responsible for the care of the children is to contact the other parent by telephone (including by text message) as soon as practicable if the children:

a. become seriously ill;

b. are hospitalised; or

c. are involved in an accident; and

i. are to inform the other parent of the name and address of any medical doctor and treating facility.

26.

That by these Orders, the parents irrevocably authorise the children’s treating medical practitioner/s and educational provider/s to provide information about the children to both parents, with the parent making the request for such information to be responsible for any costs incurred.

Family Dispute Resolution

27.

That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these Orders, before making any further application to a court the parents shall either:

a. attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney-General; or

b. participate in family dispute resolution with a Family Relationship Centre, Legal Aid Queensland Family Dispute Resolution Conference or a person authorised under section 10G of the Family Law Act 1975.

28.

That in the event that the parents participate in further counselling, mediation or family dispute resolution then they shall be at liberty to provide a copy of the Family Reports by Mr Paul J to the counsellor, mediator, Conference Organiser or Family Dispute Resolution Practitioner.

29.

The Independent Children’s Lawyer be discharged.

30.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to 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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