Pagett and Pagett - [2020] FamCA 402

FAMILY COURT OF AUSTRALIA

PAGETT & PAGETT

[2020] FamCA 402

FAMILY LAW – CHILDREN – INTERIM – COVID-19 – Where the parties have previously been residents in an Asian country – Undertaking to discontinue parenting proceedings in City A – Where the father lives in Queensland and the mother in New South Wales – Where there are allegations of risk in both households – Order for children to live with the father in Queensland – Order for time with the mother in New South Wales – Where overnight time with the mother is to be spent at the maternal grandparents house – Orders for random urinalysis testing.

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996.

Family Law Act 1975 (Cth) s 111CD

McCall & Clarke [2009] FamCAFC 92
Moose & Moose [2008] FamCAFC 108

APPLICANT:

Ms Pagett

RESPONDENT:

Mr Pagett

FILE NUMBER:

BRC

14097

2019

DATE DELIVERED:

25 May 2020

PLACE DELIVERED:

Sydney (for Brisbane Registry)

PLACE HEARD:

Sydney (for Brisbane Registry)

JUDGMENT OF:

Rees J (via video link to Brisbane)

HEARING DATE:

20 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dart

SOLICITOR FOR THE APPLICANT:

Fitzgerald Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bunning

SOLICITOR FOR THE RESPONDENT:

Michael Lynch Family Lawyers

UNDERTAKINGS

The Court NOTES the undertaking of the father that he will withdraw all applications pending in the Court of City A relating to the parenting of the children.
The Court NOTES the undertaking of the mother that she will withdraw all applications pending in the Court of City A relating to the parenting of the children.
The Court NOTES that the undertaking of the parents does not prevent either of them from making an application to the Court of City A for permission to use material filed or otherwise relied upon in that Court for the purpose of the parenting proceedings in Australia OR making any application in relation to the charge over the father’s superannuation interests in City A presently held by the legal aid authority in City A.

ORDERS

IT IS ORDERED PENDING FURTHER ORDER

That the children X born … 2010 and Y born … 2012 live with the father.
That the children spend time with the mother as follows:
(a)In each of the school holidays after the first, second and third school terms from midday on the first Saturday of the holidays until midday on the last Saturday of the holidays with the change-over to occur at the McDonalds Family restaurant at B Town.
(b)On any weekend in Brisbane from after school on Friday until school starts on Monday, the mother to collect the children from school and return them to school, provided that the mother gives to the father 14 days’ notice of her intention to travel to Brisbane.
That when the children are spending time with the mother during school holiday periods, they sleep in the same…

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 Pagett and Pagett

Details

AGLC: Pagett and Pagett [2020] FamCA 402
Case: [2020] FamCA 402
Decision Date: 25 May 2020

CaseChat Overview and Summary

This matter concerned orders made by Rees J in the Federal Circuit and Family Court of Australia concerning the living arrangements and time spent with the children, X and Y, by their parents. The dispute revolved around the specific terms of these arrangements, including where the children would live, the nature and frequency of their time with each parent, and various conditions relating to their care and well-being.

The court was required to determine the specific orders regarding the children's residence and the time they would spend with each parent. This included establishing the details of the children's living arrangements, the schedule for time spent with the mother, and imposing conditions on both parents concerning alcohol consumption, drug testing, and communication with the children. Furthermore, the court needed to make orders regarding the children's psychotherapy, access to medical information, and communication with their school.

Rees J made orders pending further direction, stipulating that the children, X and Y, would live with the father. The mother was granted specific periods of time with the children during school holidays and on weekends in Brisbane, subject to certain notice requirements. The court also imposed conditions that the children sleep in the same home as the maternal grandparents when with the mother, and that neither parent consume alcohol while the children are in their care. Additionally, orders were made for regular drug screening for both parents, electronic contact between the children and the non-resident parent, and the commencement of psychotherapy for Y. The father was also directed to ensure the mother had access to the children's medical and school information.

Orders

Orders of the court

IT IS ORDERED PENDING FURTHER ORDER

That the children X born … 2010 and Y born … 2012 live with the father.

That the children spend time with the mother as follows:

(a) In each of the school holidays after the first, second and third school terms from midday on the first Saturday of the holidays until midday on the last Saturday of the holidays with the change-over to occur at the McDonalds Family restaurant at B Town.

(b) On any weekend in Brisbane from after school on Friday until school starts on Monday, the mother to collect the children from school and return them to school, provided that the mother gives to the father 14 days’ notice of her intention to travel to Brisbane.

That when the children are spending time with the mother during school holiday periods, they sleep in the same home or premises as the maternal grandparents.

That neither parent shall consume alcohol when the children are in his or her care.

That within 48 hours of a request by the Independent Children’s Lawyer (“ICL”), each parent shall undergo chain of custody drug screen analysis to the Australian NZ 4308:2008 standard and shall direct that the test results be provided by the tester to the ICL, provided that the request of the ICL is made not more than fortnightly.

That each parent cause the children to have electronic contact with the other on Wednesday and Sunday at 5.30pm, such contact to be by FaceTime, Skype or a similar visual means if possible.

10.

That each of the parents do all things required to cause Y to commence psychotherapy as recommended by Dr C with a therapist agreed upon between them. In the event that they are unable to agree on a suitable therapist within 14 days, then the mother shall provide the father with the names of three suitably qualified therapists in the area proximate to the children’s residence and the father shall choose the therapist from that list.

11.

That the father do all things necessary to ensure that the mother is advised of the contact details of any general practitioner whom the children attend and that the general practitioner is authorised to communicate with the mother at her request.

12.

That each party advise the other of any illness of the children requiring treatment by a medical practitioner.

13.

That the father authorise the principal of the children’s school to provide to the mother all information usually provided to parents.

14.

That pursuant to Sections 65DA(2) and 62B 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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