PITRESSO & BAUKHAM (No.2) - [2019] FCCA 2529

FEDERAL CIRCUIT COURT OF AUSTRALIA

PITRESSO & BAUKHAM (No.2)

[2019] FCCA 2529

Catchwords:
FAMILY LAW – Parenting – conflicted parental relationship – child focus not always priority for parents – consequential orders.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant:

MR PITRESSO

Respondent:

MS BAUKHAM

File Number:

PAC 3597 of 2016

Judgment of:

Judge Dunkley

Hearing dates:

6 and 7 September 2018, 12 October 2018 and 5 August 2019

Date of Last Submission:

29 August 2019

Delivered at:

Parramatta

Delivered on:

13 September 2019

REPRESENTATION

Counsel for the Applicant:

Mr A. Givney

Solicitors for the Applicant:

Lama Family Lawyers

Counsel for the Respondent:

Ms M. Rebehy

Solicitors for the Respondent:

Johnson Horsley Lawyers

ORDERS

All prior parenting order are discharged.
The mother shall have sole parental responsibility for [X] born … 2013, subject to orders 8, 9, 10, 11 16, 18 and 19 hereof.
[X] shall live with her mother.
[X] shall spend time with her father:
(a)During school term time from after school Friday to before school Monday commencing the second Friday after the making of these orders and recommencing the 2^nd Friday of each new school term.
(b)From 9am on the middle Sunday to 6pm on the last Sunday of Terms 1, 2 and 3 school holidays.
(c)For one half of the Term 4 school holidays being the first half in 2019/2020 and each alternate year thereafter and the second half in 2020/2021 and each alternate year thereafter.
(d)On Father’s Day from 9am to 5.30pm.
(e)At such other times as the parents agree.
Changeovers shall occur as follows:
(a)If a changeover takes place on a non-school day or outside of school hours then:
(i)The father shall collect the child from the mother or her nominee at the maternal grandparents' residence at the beginning of his time with the child.
(ii)The father shall return the child to the mother or her nominee at the maternal grandparents’ residence at the end of the father's time with the child.
(b)If changeover takes place on a school day, the father shall collect the child from school if his time with the child commences after school and the father shall return the child to school if his time with the child concludes before school.
That the parties shall keep each informed by email as soon as is reasonably practicable of:
(a)Any medical problems or illness suffered by the child, whilst in their care, and in the case of serious injury or illness, will advise the other parent within 1 hours of the injury or illness occurring, with details of the hospital or medical facility, or doctor's surgery, that has treated the child and the full name and contact details of the treating medical professional.
(b)Any medication that has been prescribed for the child.
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child.
That the parties shall notify each other of any change to their email address.
Each party can be in attendance at the child’s…

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 PITRESSO & BAUKHAM (No.2)

Details

AGLC: Pitresso and Baukham (No.2) [2019] FCCA 2529
Case: [2019] FCCA 2529
Decision Date: 13 September 2019

CaseChat Overview and Summary

This matter concerned parenting orders between Mr Pitresso and Ms Baukham regarding their child, [X]. The dispute arose from a conflicted parental relationship where the parents' own issues appeared to overshadow the child's best interests. Judge Dunkley presided over the proceedings.

The court was required to determine the most appropriate parenting arrangements for [X], considering the parents' inability to co-parent effectively. This involved establishing a primary caregiver, defining the time the child would spend with each parent, and setting out protocols for communication, changeovers, and the child's welfare, including medical and educational matters. The court also had to address the risk of international child abduction and implement measures to prevent it.

In reaching its decision, the court discharged all prior parenting orders and made new orders aimed at providing stability for [X]. The mother was granted sole parental responsibility, with the child to live with her. Specific time arrangements were made for the father, including weekend and holiday periods, with detailed provisions for changeovers at a neutral location. The court also imposed strict communication requirements regarding the child's health and education, and ordered that neither parent denigrate the other in the child's presence. Further orders were made to prevent the child's removal from Australia and to restrain the father from certain actions concerning the child's bathing, personal hygiene, and appearance, as well as applying for a passport.

The court ordered that all prior parenting orders be discharged. The mother was granted sole parental responsibility for [X], with the child to live with her. Specific time arrangements were detailed for the father, along with protocols for changeovers, communication, and the child's welfare. Measures were put in place to prevent international child abduction, and certain restraints were placed on the father's conduct. All outstanding applications and responses were removed from the list of cases awaiting finalisation.

Orders

Orders of the court

All prior parenting order are discharged.

The mother shall have sole parental responsibility for [X] born … 2013, subject to orders 8, 9, 10, 11 16, 18 and 19 hereof.

[X] shall live with her mother.

[X] shall spend time with her father:

(a) During school term time from after school Friday to before school Monday commencing the second Friday after the making of these orders and recommencing the 2nd Friday of each new school term.

(b) From 9am on the middle Sunday to 6pm on the last Sunday of Terms 1, 2 and 3 school holidays.

(c) For one half of the Term 4 school holidays being the first half in 2019/2020 and each alternate year thereafter and the second half in 2020/2021 and each alternate year thereafter.

(d) On Father’s Day from 9am to 5.30pm.

(e) At such other times as the parents agree.

Changeovers shall occur as follows:

(a) If a changeover takes place on a non-school day or outside of school hours then:

(i) The father shall collect the child from the mother or her nominee at the maternal grandparents' residence at the beginning of his time with the child.

(ii) The father shall return the child to the mother or her nominee at the maternal grandparents’ residence at the end of the father's time with the child.

(b) If changeover takes place on a school day, the father shall collect the child from school if his time with the child commences after school and the father shall return the child to school if his time with the child concludes before school.

That the parties shall keep each informed by email as soon as is reasonably practicable of:

(a) Any medical problems or illness suffered by the child, whilst in their care, and in the case of serious injury or illness, will advise the other parent within 1 hours of the injury or illness occurring, with details of the hospital or medical facility, or doctor's surgery, that has treated the child and the full name and contact details of the treating medical professional.

(b) Any medication that has been prescribed for the child.

(c) Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child.

That the parties shall notify each other of any change to their email address.

Each party can be in attendance at the child’s school for any event at which parents are invited to be in attendance.

Both parties are permitted to attend any sporting or extra‑curricular activity that the child is attending, which parents are ordinarily invited to attend.

10.

That both parties are authorised to receive direct from the child's school a copy of the child's school reports, school photos (at that party's cost) and school newsletters from time to time.

11.

The mother is to provide a copy of these orders to any school attended by [X].

12.

Each of Mr Pitresso born … 1970 and Ms Baukham born … 1974 and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of [X] born … 2013 (female) from the Commonwealth of Australia.

13.

[X] be and is hereby restrained from leaving the Commonwealth of Australia.

14.

It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 31 December 2023.

15.

Upon expiration of the period referred to in Order 14 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child names from the Watch List.

16.

Neither party shall denigrate the other party or a member of that party’s family or household in the presence or hearing of the child nor permit the child to remain in the presence or hearing of any person who engages in such denigrative behaviour.

17.

The father is restrained from:

(a) Being present whilst the child is bathing.

(b) Attending himself to the child’s personal hygiene consequent upon her bathing or toileting.

(d) Cutting the child’s hair.

(e) Apply for a passport for the child.

18.

Each party is permitted to enrol the chid in or engage the child with any sporting or extra‑curricular activity of their choice.

19.

Neither parent is required to facilitate the child’s attendance at or engagement with any sporting or extra‑curricular activity.

20.

Pursuant to s.65DA(2) and s.62B, 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.

21.

All outstanding Applications and Responses are removed from the list of cases awaiting finalisation.

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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