Patino and Griego - [2010] FMCAfam 1422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATINO & GRIEGO

[2010] FMCAfam 1422

FAMILY LAW – Competing parenting applications – allegations of serious domestic violence – risk of physical and emotional harm to children – Mother have sole parental responsibility.

Family Law Act 1975, ss.68B, 68C, 69ZX, 69ZT, 61DA, 65DAA, 60CC, 60CA
Evidence Act 1995, s.114
Universal Declaration of Human Rights
Declaration on the Elimination of Violence Against Women
Convention on the Elimination of Discrimination Against Women

Rice & Asplund [1978] FamCA, [1979] FLC 90-725
Browne & Dunn (1893) 6 R 67 (HL)
Blanche & Blanche & Crawford [1998] FamCA 1908, (1999) FLC 92-837
Merryman (1993) 116 FLR 87
Oakley & Cooper [2009] FamCAFC 133
Aguilera v Reid, 2006 CanLII 6169 (ON S.C) - 2006-03-03
MMR & GR [2010] HCA 4
DCR & TMR, 2007 BCSC 1127-2007/07/27
Mazorski & Albright (2007) 37 FamLR 518
McCall & Clark [2009] FamCAFC 92, (2009) 41 Fam LR 483 at 509-510
Goode & Goode (2006) FLC 93-286
Marvel [2010] FamCAFC 101
Lewis & Wackett [2010] FamCA 717
U & U (2002) 211 CLR 238
M & M [1988] HCA 68; (1988) 166 CLR 69
B& B (1993) FLC 92-357
Bieganski (1993) FamLR 353
Dylan & Dylan FamCA 842
S & Baloyi (CCT29/999) [1999] ZACC 19; 2000 (1) BCLR 86; 2000 (2) SA 425 (CC) (3 December 1999)

Applicant:

MR PATINO

Respondent:

MS GRIEGO

File Number:

AYC 4 of 2008

Judgment of:

Harman FM

Hearing dates:

30 November 2010 – 2 December 2010

Date of Last Submission:

2 December 2010

Delivered at:

Albury

Delivered on:

2 December 2010

REPRESENTATION

Solicitors for the Applicant:

Ms Garwell

ORDERS

I discharge all previous parenting orders.
That the mother, Ms Griego, shall have sole parental responsibility for the children, [X], born [in] 2004, and [Y], born [in] 2005.
That [X] and [Y] shall live with their mother.
That [X] and [Y] shall spend supervised time with their father,

Mr Patino, at the [A] Children's Contact Service as follows:
(a)On 4 and 18 December 2010, for a period of two hours;
(b)Thereafter and commencing 2011, on four occasions per year to celebrate:
(i)[X] and [Y]’s birthdays;
(ii)Father’s Day;
(iii)The father’s birthday;
(iv)Christmas.
And it is noted that these times will be arranged to suit the centre’s availability and may not occur on the actual day of those events.
That the father and mother shall keep each other informed of their postal addresses at all times, and notify the other in writing no more than seven days prior to any proposed change of address, of their new postal address.
That the mother shall do all acts and things to ensure [X] and [Y] receive all letters sent to them by their father, and the mother shall encourage the children to read such letters and respond to them.
That the father may obtain directly from [X] and [Y]’s schools:
(a)copies of each of the children’s mid and end of year school reports;
(b)copies of any written material…

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 Patino and Griego

Details

AGLC: Patino and Griego [2010] FMCAfam 1422
Case: [2010] FMCAfam 1422
Decision Date: 2 December 2010

CaseChat Overview and Summary

Patino and Griego involved a dispute between the parents of two children, [X] and [Y], regarding their care and contact arrangements. The matter was heard by the Family Court of Australia, which had to decide on the allocation of parental responsibility, the living arrangements, and the visitation schedule for the children. The court also needed to address issues related to communication, access to school reports, and the prohibition of negative comments about the other parent in the presence of the children.

The court considered the best interests of the children as the paramount concern in making its decision. It noted that the mother had been the primary caregiver, and the children had been living with her. The court found that sole parental responsibility should be awarded to the mother, with the children residing with her. The father was granted supervised visitation at the [A] Children's Contact Service, with specific arrangements for the timing and frequency of visits. The court also imposed restrictions on the father's communication with the children and required both parents to refrain from making derogatory comments about each other in front of the children.

In its orders, the court discharged previous parenting orders and established new arrangements for parental responsibility, living arrangements, and visitation. The mother was given sole parental responsibility, and the children were to live with her. The father was permitted supervised visits with the children, with specific timing and frequency. Both parents were required to maintain communication and ensure that the children received and responded to letters from the other parent. The court also prohibited the father from attending the children's school and approaching them outside of the specified visitation times. Additionally, the mother was directed to facilitate contact between the children and the paternal extended family under certain conditions.

The final orders included directives for the parents to keep each other informed of their addresses, for the mother to ensure the children received and responded to letters from the father, and for the father to obtain copies of the children's school reports and photographs. The court also imposed a prohibition on the parents from denigrating each other in front of the children and mandated that the independent children's lawyer meet with the children to explain the court's orders.

Orders

Orders of the court

I discharge all previous parenting orders.

That the mother, Ms Griego, shall have sole parental responsibility for the children, [X], born [in] 2004, and [Y], born [in] 2005.

That [X] and [Y] shall live with their mother.

That [X] and [Y] shall spend supervised time with their father,

Mr Patino, at the [A] Children's Contact Service as follows:

(a) On 4 and 18 December 2010, for a period of two hours;

(b) Thereafter and commencing 2011, on four occasions per year to celebrate:

(i) [X] and [Y]’s birthdays;

(ii) Father’s Day;

(iii) The father’s birthday;

(iv) Christmas.

And it is noted that these times will be arranged to suit the centre’s availability and may not occur on the actual day of those events.

That the father and mother shall keep each other informed of their postal addresses at all times, and notify the other in writing no more than seven days prior to any proposed change of address, of their new postal address.

That the mother shall do all acts and things to ensure [X] and [Y] receive all letters sent to them by their father, and the mother shall encourage the children to read such letters and respond to them.

That the father may obtain directly from [X] and [Y]’s schools:

(a) copies of each of the children’s mid and end of year school reports;

(b) copies of any written material pertaining to each of the children’s significant academic and extracurricular activities and achievements; and

That the parties, and each of them, are restrained from denigrating the other parent, or any member of the other parent’s family, in the presence or hearing of the children, or in anything written to them, and shall ensure that no other person does so.

Pursuant to s.68B of the Family Law Act 1975, the father is restrained from approaching [X] and [Y], other than is provided by these orders, and from attending at their school.

10.

I note that the above order pursuant to s.68B is an order made under a provision of the Act relating to the personal protection of the children, and as such, pursuant to s.68C, comes attached with an automatic power of arrest without warrant in the event of allegation of breach and reasonable grounds to believe same has occurred.

11.

Noted that the mother will facilitate time between [X] and [Y] and members of the extended paternal family, provided that:

(a) the father is not present when such time occurs;

(b) the mother is given prior notice of that time occurring;

12.

All outstanding applications and responses are dismissed, and all issues removed from the list of cases awaiting hearing.

13.

I make the usual order for the return or destruction, if that has been requested, of all subpoenaed material upon the expiration of the appeal period.

14.

I request that the independent children's lawyer, as soon as practicable, meet with each of [X] and [Y] for the purpose of explaining these orders to them, as best they can. And in the event that the assistance or attendance of a family consultant for that purpose is desired, then I request that the registry give such assistance as possible to expediting same.

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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