Paton and WILLIAMS and Ors - [2010] FamCA 855

FAMILY COURT OF AUSTRALIA

PATON & WILLIAMS AND ORS

[2010] FamCA 855

FAMILY LAW – CHILDREN – Parental responsibility – With whom child shall live and spend time – Parties in dispute include the father, mother, maternal grandmother and paternal grandparents – Failure of father to participate at trial – Allegations that child is at risk of psychological harm and exposure to family violence in the care of father – Finding that child not at risk of psychological harm or exposure to family violence in the care of the paternal grandparents – Equal shared parental responsibility allocated to the paternal grandparents – Child to live with the paternal grandparents and to spend time with the mother and/or maternal grandmother one weekend per month and during school holiday periods – Father to spend time with the child on a supervised basis by agreement with the paternal grandparents

Care of Children Act 2004 (NZ)
Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 229
Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 42 Fam LR 531
Potts & Bims & Ors [2007] FamCA 394

APPLICANT:

Mr Paton

1st RESPONDENT:

Ms Williams

2nd RESPONDENT:

Ms Bennie

3rd RESPONDENT:

Mr Paton Snr

4th RESPONDENT:

Mrs Paton Snr

INDEPENDENT CHILDREN’S LAWYER:

Ms McKinnon,
Slater & Gordon Solicitors

FILE NUMBER:

NCC

2640

2008

DATE DELIVERED:

27 September 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

7, 8, and 10 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE 1ST RESPONDENT:

Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT:

Not Applicable

COUNSEL FOR THE 2ND RESPONDENT:

Mr Davies

SOLICITOR FOR THE 2ND RESPONDENT:

The Charlestown Law Firm

COUNSEL FOR THE 3RD RESPONDENT:

Mr Graham

SOLICITOR FOR THE 3RD RESPONDENT:

Mullane & Lindsay

COUNSEL FOR THE 4TH RESPONDENT:

Mr Graham

SOLICITOR FOR THE 4TH RESPONDENT:

Mullane & Lindsay

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McKinnon,
Slater & Gordon Solicitors

Orders

All former parenting orders relating to the child J, born on … February 2004, (“the child”) are discharged.
The third and fourth respondents shall have equal shared parental responsibility for the child.
The child shall live with the third and fourth respondents.
Each of the parties shall take all reasonable steps to ensure that the child spends time with the first and/or second respondents as follows, or as otherwise agreed:
4.1From 5.30 pm Friday until 5.30 pm Sunday on the third and seventh weekends of each New South Wales public school term.
4.2From 5.30 pm Friday until 5.30 pm Sunday on the weekend that Mother’s Day falls.
4.3During New South Wales public school holidays at the end of the first and third school terms, for the second half of such holidays in every even numbered year, and for the first half of such holidays in every odd numbered year.
4.4For the whole of the New South…

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: [2010] FamCA 855
Decision Date: 27 September 2010

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in February 2004. The dispute involved the first and second respondents, and the third and fourth respondents, with the court also noting the involvement of an applicant and an Independent Children's Lawyer. The orders discharged all former parenting orders relating to the child.

The court was required to determine the arrangements for the child's parental responsibility, residence, and time spent with each party. This included establishing equal shared parental responsibility, determining with whom the child would live, and setting out specific periods for the child to spend time with the first and second respondents, as well as arrangements for communication and the exchange of information between all parties. Further issues included restrictions on removing the child from Australia and provisions regarding the child's passport and the discharge of the Independent Children's Lawyer.

Justice Austin ordered that the third and fourth respondents have equal shared parental responsibility for the child, and that the child live with them. Specific provisions were made for the child to spend time with the first and second respondents, including during school holidays and on particular weekends, with detailed arrangements for delivery and collection at a designated service station. The court also made orders regarding communication between the child and the parties, including telephone contact and communication on birthdays. Each party was restrained from denigrating the other in the child's presence, and from permitting the child to be in the presence of specific individuals. Provisions were also made for the exchange of medical, educational, and personal contact information, and for the child's passport to be held by the third or fourth respondent. The first and second respondents were restrained from removing the child from Australia except under specific conditions, including prior written notice and the child's passport being returned. The court also noted that particulars of obligations, consequences of contravention, and assistance for compliance were set out in an attached Fact Sheet, pursuant to sections 65DA(2) and 62B of the *Family Law Act*.

Orders

Orders of the court

All former parenting orders relating to the child J, born on … February 2004, (“the child”) are discharged.

The third and fourth respondents shall have equal shared parental responsibility for the child.

The child shall live with the third and fourth respondents.

Each of the parties shall take all reasonable steps to ensure that the child spends time with the first and/or second respondents as follows, or as otherwise agreed:

4.1 From 5.30 pm Friday until 5.30 pm Sunday on the third and seventh weekends of each New South Wales public school term.

4.2 From 5.30 pm Friday until 5.30 pm Sunday on the weekend that Mother’s Day falls.

4.3 During New South Wales public school holidays at the end of the first and third school terms, for the second half of such holidays in every even numbered year, and for the first half of such holidays in every odd numbered year.

4.4 For the whole of the New South Wales public school holidays at the end of the second school term.

4.5 During the New South Wales Christmas public school holidays, for the second half of such holidays when they commence in an even numbered year, and for the first half of such holidays when they commence in an odd numbered year.

For the purposes of implementation of Order 4, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day between those first and last days.

For the purposes of implementing the time spent by the child with the first and/or second respondents:

6.1 The third and/or fourth respondents shall cause the delivery and the first and/or second respondents shall cause the collection of the child at the commencement of the time to be spent with the first and/or second respondents at the Caltex Service Station at B, NSW, and

6.2 The first and/or second respondents shall cause the delivery and the third and/or fourth respondents shall cause the collection of the child at the conclusion of the time spent with the first and/or second respondents at the same place.

The time spent by the child with the applicant shall:

7.1 Be determined by agreement between the applicant and third and fourth respondents,

7.2 Not conflict with the time spent by the child with the first and/or second respondents pursuant to Order 4 hereof, and

7.3 Be supervised by the third and/or fourth respondents.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

8.1 The first and/or second respondents each Thursday when the child is living with the third and fourth respondents, at 7.45 pm, and for that purpose the first and/or second respondent shall telephone the child on the telephone number provided to them by the third and fourth respondents, and the third and fourth respondents shall ensure that the child is able to receive the first and/or second respondent’s call on that number at that time.

8.2 The third and/or fourth respondents each Thursday when the child is spending time with the first and/or second respondents, at 7.45 pm, and for that purpose the third and/or fourth respondent shall telephone the child on the telephone number provided to them by the first and second respondents, and the first and second respondents shall ensure that the child is able to receive the third and/or fourth respondent’s call on that number at that time.

8.3 The applicant when the child is living with the third and fourth respondents, at times agreed between the applicant and third and fourth respondents.

8.4 The parties with whom the child is not then living or spending time, on the child’s birthdays, between 7.45 pm and 8.15 pm, and for that purpose the parties with whom the child is not living or spending time shall telephone the child on the telephone number provided by the other parties for that purpose, and the parties with whom the child is living or spending time shall ensure that the child is able to receive the other parties’ calls on that number during that time.

Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

10.

Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parties about the condition and treatment of the child.

11.

Each party, in so far as it is respectively known to them, shall keep the other parties informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.

12.

The third and fourth respondents shall authorise and request the principal of any school attended by the child to provide to the other parties, at their expense, copies of the child’s school reports and school photograph order forms.

13.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

14.

Each party is restrained from permitting the child to be or remain in the presence of:

14.1 Mr O

14.2 Ms R

15.

All former orders directing or requesting the placement of the child’s name on the Airport Watch List are discharged, and for that purpose leave is granted to the parties to furnish a sealed copy of these orders to the Australian Federal Police.

16.

The Independent Children’s Lawyer shall give the child’s passport, being Australian Passport M…, to the third or fourth respondent within 7 days of the date of these orders.

17.

The first and second respondents are each restrained from removing the child from Australia unless the following conditions are met:

17.1 The child is taken only to New Zealand, and not more frequently than twice per calendar year.

17.2 The departures and returns occur within the periods during which the child spends time with the first and/or second respondents pursuant to Orders 4.3, 4.4, and 4.5 hereof,

17.3 The first and/or second respondents give 28 days written notice to the third and fourth respondents of the itinerary and flight details, and

17.4 The first and/or second respondents return the child’s passport to the third and fourth respondents upon the child’s return to the third and fourth respondents at the conclusion of the time spent by the child with the first and/or second respondents.

18.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.

19.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

20.

Any and all outstanding applications are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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