Musto and Walbridge - [2011] FamCA 717

FAMILY COURT OF AUSTRALIA

MUSTO & WALBRIDGE

[2011] FamCA 717

FAMILY LAW - CHILDREN - Best interests – With whom a child spends time where the child resides overseas – With whom a child communicates – Where the child has no meaningful relationship with the father - Sole parental responsibility – Whether the father should be at liberty to have written communication with the child - Whether an injunction ought to be granted restraining the change of the child’s surname

Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 60CC(2), s 60CC(3), s 61B, s 61C, s 61DA(1), s 61DA(2), s 61DA(4), s 64B(1), s 65AA, s 68B

Chappell and Chappell [2008] Fam CAFC 143
Flanagan v Handcock (2001) FLC 93-074
George and Radford (1976) FLC 90-60
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Ms Musto

RESPONDENT:

Mr Walbridge

INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

FILE NUMBER:

BRC

8142

2007

DATE DELIVERED:

9 September 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Johnston J

HEARING DATE:

4 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamwood

SOLICITOR FOR THE APPLICANT:

Reaburn Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Pieterse

SOLICITOR FOR THE RESPONDENT:

Christine Vachon Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fleetwood

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

Orders

The following final parenting orders are made in relation to the child B Walbridge born on … January 2003 (“the child”).

Parental Responsibility

That the mother shall have sole parental responsibility for the child.

Live with

That the child shall live with her mother in the US.

Time with

That the child shall spend no time with her father.

Communication

That the father may send a letter or greeting card to B on not more than four occasions each year.
That the mother shall keep the father notified of the child’s postal address at all times.
That the mother is permitted to vet such communications for their suitability.
That the father shall not communicate with the child by any other means.

Specific Issues

a. That the mother shall keep the father notified of the child’s school, usual treating general practitioner and any specialist medical practitioner;
b.That the mother shall do all things and sign all documents necessary to facilitate copies of relevant school or medical documents relating to the child (including photos, X-rays or similar documents) being made available to the father.
a. That the father is at liberty, at his own expense, to obtain from the child’s school copies of any school report, school newsletter and school photo, and the mother will do everything necessary to have the father listed as being the child’s father on all relevant school reports.
b.That the father is at liberty, at his own expense, to obtain from the child’s treating medical practitioner any medical records relating to the child.

Further Orders

That the order appointing the Independent Child Lawyer is discharged.

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.

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Details

Case: [2011] FamCA 717
Decision Date: 9 September 2011

CaseChat Overview and Summary

In *Musto and Walbridge*, heard by Johnston J, the court was required to make final parenting orders concerning a child, B Walbridge. The dispute concerned the arrangements for the child's residence, parental responsibility, and the extent of the father's future contact with the child.

The primary legal issues before the court were: (1) who should have parental responsibility for the child; (2) where the child should live; (3) the nature and extent of any time the child should spend with the father; and (4) the terms of any communication or information sharing between the father and the child, and the mother regarding the child.

Johnston J ordered that the mother have sole parental responsibility for the child and that the child live with her in the US. The court further ordered that the child spend no time with her father. However, the father was permitted to send letters or greeting cards to the child on a limited basis, with the mother having the right to vet such communications. The mother was also ordered to keep the father informed of the child's postal address, school, and treating medical practitioners, and to facilitate the father's access to copies of school and medical documents relating to the child, at his own expense. The court also made orders regarding the discharge of the Independent Child Lawyer and the return of exhibits.

Orders

Orders of the court

The following final parenting orders are made in relation to the child B Walbridge born on … January 2003 (“the child”).

Parental Responsibility

That the mother shall have sole parental responsibility for the child.

Live with

That the child shall live with her mother in the US.

Time with

That the child shall spend no time with her father.

Communication

That the father may send a letter or greeting card to B on not more than four occasions each year.

That the mother shall keep the father notified of the child’s postal address at all times.

That the mother is permitted to vet such communications for their suitability.

That the father shall not communicate with the child by any other means.

Specific Issues

a. That the mother shall keep the father notified of the child’s school, usual treating general practitioner and any specialist medical practitioner;

b. That the mother shall do all things and sign all documents necessary to facilitate copies of relevant school or medical documents relating to the child (including photos, X-rays or similar documents) being made available to the father.

10.

a. That the father is at liberty, at his own expense, to obtain from the child’s school copies of any school report, school newsletter and school photo, and the mother will do everything necessary to have the father listed as being the child’s father on all relevant school reports.

b. That the father is at liberty, at his own expense, to obtain from the child’s treating medical practitioner any medical records relating to the child.

Further Orders

11.

That the order appointing the Independent Child Lawyer is discharged.

12.

That following the expiration of the appeal period, all documents produced on subpoena may be returned to the persons or institutions who produced them and all exhibits may be released.

13.

That pursuant to s.62B and s.65DA(2) of the Family Law Act 1975, 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.

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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