Page and Wainwright - [2011] FMCAfam 90

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PAGE & WAINWRIGHT

[2011] FMCAfam 90

FAMILY LAW – Interim parenting determination – parties directed to attend a Child Dispute Conference – Child Dispute Conference memorandum raises allegations by the Mother of drug use and sexual abuse by the Father – cancellation of the child’s passport – family violence orders in place against the Mother and her current partner prohibiting their contact with the Father – presumption of equal shared parental responsibility should not apply unilateral removal of the child by the mother from day care – costs order made.

Family Law Act 1975, ss.61DA, 117, 117AB, 60K, 60CF, 60CG, 65DAA, 60CC, 60CA
Australian Passports Act 2005, ss.22, 29, 31, 35
Freedom of Information Act 1982
Federal Magistrates Court Rules 2001, schedule 1

Pitkin & Hendry [2008] FamCA 186
Dylan & Dylan [2007] FamCA 842
MRR & GR [2010] HCA 4

Applicant:

MR PAGE

Respondent:

MS WAINWRIGHT

File Number:

PAC 4947 of 2010

Judgment of:

Harman FM

Hearing date:

31 January 2011

Date of Last Submission:

31 January 2011

Delivered at:

Parramatta

Delivered on:

31 January 2011

REPRESENTATION

Counsel for the Applicant:

Ms Conte-Mills

Solicitors for the Applicant:

A R Walmsley & Co

Solicitors for the Respondent:

Mr Jakimoski

ORDERS

All prior parenting orders with respect to the child of the relationship, [X], born [in] 2006 are discharged.
That pending further order, I am satisfied pursuant to s.61DA(3) that the presumption of equal shared responsibility should not apply.
Pending further order, [X] shall live with his father in school terms:
(a)Each alternate weekend during school terms from the conclusion of school Thursday until the commencement of school the following Monday (extending to Tuesday if a long weekend or pupil free day);
(b)From the conclusion of school Thursday till the commencement of school the following day, Friday, in each intervening week.
Pending further order, [X] shall live with his father for one half of each New South Wales school holiday period, being in 2011 the first half, to commence by [X] remaining in the father’s care until 6 pm on the middle Saturday of the holidays and noting that [X] will be in his care from the Thursday preceding the commencement of each school holiday period.
Pending further order, [X] shall live with his father from 6 pm Saturday until the commencement of school the following Monday for the Father’s Day weekend if [X] is not already in the father’s care, and provided that in the event that Mother’s Day falls on a weekend when [X] would be in the father’s care, that [X] shall return to his mother for that weekend at 6 pm Saturday.
Pending further order and at all times save when [X] is living with his father, that [X] shall live with his mother.
For the purpose of [X] passing between his parents, that the parent in whose care [X] is shall be responsible for transporting [X] to and from school and for changeovers that might occur on non-school…

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 Page and Wainwright

Details

AGLC: Page and Wainwright [2011] FMCAfam 90
Case: [2011] FMCAfam 90
Decision Date: 31 January 2011

CaseChat Overview and Summary

The case of Page and Wainwright involved a dispute between the parents of a child born in 2006, concerning parenting arrangements and other related issues. The matter was heard in the Federal Magistrates Court of Australia. The father, Mr Page, sought various parenting orders, including a change in the existing arrangements for the child's residence and contact, and measures to prevent the child from being removed from Australia.

The primary legal issues before the court were whether the existing parenting orders should be discharged, the presumption of equal shared responsibility should not apply, and if new arrangements for the child's residence and contact should be put in place. Additionally, the court had to consider the parents' communication methods, the child's education, and measures to prevent the child from being removed from Australia.

The court found that the existing parenting orders should be discharged and that the presumption of equal shared responsibility should not apply. The court then set out detailed interim parenting orders concerning the child's residence and contact with each parent, as well as measures to prevent the child from being removed from Australia. The court also ordered the parents to use a communications book for matters related to the child's welfare, health, and education and directed the parents to seek assistance from Centacare and participate in the Keeping Kids in Mind program. The court further ordered the parents to complete an online workbook program from www.uptoparents.org and maintain courteous and focused communication. The case was adjourned for further mention and directions.

Orders

Orders of the court

All prior parenting orders with respect to the child of the relationship, [X], born [in] 2006 are discharged.

That pending further order, I am satisfied pursuant to s.61DA(3) that the presumption of equal shared responsibility should not apply.

Pending further order, [X] shall live with his father in school terms:

(a) Each alternate weekend during school terms from the conclusion of school Thursday until the commencement of school the following Monday (extending to Tuesday if a long weekend or pupil free day);

(b) From the conclusion of school Thursday till the commencement of school the following day, Friday, in each intervening week.

Pending further order, [X] shall live with his father for one half of each New South Wales school holiday period, being in 2011 the first half, to commence by [X] remaining in the father’s care until 6 pm on the middle Saturday of the holidays and noting that [X] will be in his care from the Thursday preceding the commencement of each school holiday period.

Pending further order, [X] shall live with his father from 6 pm Saturday until the commencement of school the following Monday for the Father’s Day weekend if [X] is not already in the father’s care, and provided that in the event that Mother’s Day falls on a weekend when [X] would be in the father’s care, that [X] shall return to his mother for that weekend at 6 pm Saturday.

Pending further order and at all times save when [X] is living with his father, that [X] shall live with his mother.

For the purpose of [X] passing between his parents, that the parent in whose care [X] is shall be responsible for transporting [X] to and from school and for changeovers that might occur on non-school days, same shall occur at McDonald’s [M].

Each of the parents shall forthwith do all things, sign all documents and give all consents and authorities necessary to:

(a) Cause [X] to be enrolled for the 2011 school year at [W] School and not otherwise;

(b) Ensure that both parents’ details are included in [X]’s enrolment record; and

(c) Enable both parents to obtain such information from the school as they may desire, including copies of reports, photo order forms, newsletters or correspondence and to attend at the school at any time when parents are invited or permitted to attend.

Each parent shall keep the other advised forthwith and contemporaneous with the event of any significant illness, specialist medical treatment or hospitalisation required by [X], including the provision of all particulars of any treating doctor or hospital and such consent or authority as is required to enable each parent to be fully consulted and advised regarding [X]’s treatment and to visit him if hospitalised.

10.

Until further order the applicant and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children [X] born [in] 2006 (male) 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.

Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.

13.

The Australian Federal Police 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.

14.

The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.

15.

Airport Watch List order to expire 3 June 2020.

16.

I refer this file together with the copy of the reasons for judgment given today and in particular the affidavit of Mr Page affirmed 21 October 2010 to the Marshal of the Court for the purpose of liaising with the Department of Immigration and any relevant officer thereof as to the probity of transactions occurring with respect to passport applications submitted by Ms Wainwright with respect to the child [X], such applications purporting to be dated 10 and 11 September 2008 respectively and both parents’ signatures purporting to be witnessed by a Ms S, notwithstanding the mother’s evidence that she, in fact, signed each of those applications for and instead of the father and in the presence of Ms S.

17.

Pursuant to s.22 of the Australian Passports Act 2005, I request that the Minister forthwith cancel any passport issued for the child [X], born [in] 2006.

18.

Pending further order, the party shall continue to use a communications book to pass between them at changeovers or to pass in [X]’s school bag when changeovers occur through school, such communications book to be used to advise matters relevant to [X]’s welfare, health and education, and communication within that book shall be written in the English language.

19.

Pursuant to s.117 and 117AB of the Family Law Act 1975 (“the Act”), Ms Wainwright is to pay Mr Page’s costs of and incidental to these interim proceedings. Such costs assessed and fixed in the sum of $4,840 and to be paid within two months of today’s date.

20.

Direct both parents to forthwith contact Centacare and such office of that organisation as is convenient to them for the purpose of seeking assistance regarding inter-parental communication, appropriate support and encouragement of each parent’s relationship with [X] and thirdly, to participate as soon as practicable in the Keeping Kids in Mind program.

21.

These proceedings are adjourned for further mention and directions before me to 9.30 am on Friday, 20 May 2011.

22.

The parties are to be referred to in any document filed with or any address made to the Court and any correspondence generated in connection with these proceedings by their name rather than being identified by generic phrases (such as applicant/respondent or mother/father).

23.

The children of the parties are to be referred to in any document filed with or any address made to the Court and any correspondence generated in connection with these proceedings by their given names.

24.

Each parent or other party shall, within 4 weeks, register with www.uptoparents.org and complete the on-line work book program offered by that site and will, on completion, print the work book they have completed and provide a copy to all other parties and shall be produced to the Court at any final hearing.

25.

All communication between the parties and/or their lawyers shall, as far as practicable, be courteous, non-judgemental, non-accusatory and focused on issues in dispute and towards finding a path forward to address those relevant issues in dispute.

26.

Liberty to the parties to restore the matter to my list if possible by telephone link in Chambers but if not in person in the event of any allegations of non-compliance with any interim parenting order, any difficulties that are encountered or anticipated with respect for preparation for hearing or in the event of fresh matters of urgency relating to the child’s welfare arising and I direct that neither party is to file a further Application in a Case or Contravention Application prior to having relisted the matter.

27.

In the event that the above liberty is utilised by a party then they are to ensure that the other party is advised forthwith of any listing date as well as the basis on which the relisting has been sought and the orders or directions that are to be sought by them when the matter is next before the Court.

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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