FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAIMER & WALCUTT | [2020] FCCA 1686 |
| Catchwords: FAMILY LAW – Parenting – dispute over whether order for equal shared parental responsibility – live with orders for the children –– dispute over time spend orders for the children – evidence of private report writer – position of Independent Children’s Lawyer – final orders in children’s best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA |
| Cases cited: Albert & Plowman [2020] FamCAFC 23 Hall & Hall (1979) FLC 90-173 Goode & Goode (2006) FLC 93-286 MMR & GR (2010) 240 CLR 461 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Tait & Densmore [2007] FamCA 1383 Sigley & Evor [2011] FamCAFC 22 R&R: Children’s Wishes (2000) FLC 93-000 Vallans & Vallans [2019] FamCAFC 260 Heath & HemmingNo. 2 (2011) FamCA 749 In the Marriage of JD & BG (1994) 18 FLR 255 In the Marriage of Patsalou (1994) 18 FLR 426 |
| Applicant: | MR RAIMER |
| Respondent: | MS WALCUTT |
| File Number: | DGC 3420 of 2018 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 16 & 17 December 2019 & 26 February 2020 |
| Date of Last Submission: | 22 April 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 26 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Howe |
| Solicitors for the Applicant: | MMH Lawyers |
| Counsel for the Respondent: | Mr O'Connell |
| Solicitors for the Respondent: | Victoria Legal Aid |
| Counsel for the Independent Children's Lawyer: | Mr Lynch |
| Solicitors for the Independent Children's Lawyer: | Peter Lynch Lawyer |
ORDERS
All previous parenting orders regarding the children, X born in 2004 (“X”) and Y born in 2006 (“Y”) (collectively, “the children”) be discharged.
The mother have sole parental responsibility for the children.
The children live with the mother.
X spend time with the father according to his wishes.
After the father completes 10 sessions of a Men's Behavioural Change Program (and provide proof of these sessions to the mother), the father and Y attend Family Therapy with Ms B (or other Family Therapist as agreed between the mother and father) at the father's expense.
Thereafter, Y communicate and spend time with the father according to her wishes.
If Y expresses a wish to spend time or communicate with the father, the mother will facilitate this time/communication as far as practicable.
For the purposes of Order 5 the father provide the manger or director of the Men’s Behavioural Change Program and the mother provide the Family Therapist with a copy of these orders and the reasons for judgment.
The mother shall:
(a)keep the father advised as soon as practicable of any serious illness or injury sustained by the children or either of them and details as to the treatment; and
(b)provide the father with copies of each of the children’s school reports as soon as practicable after receiving them from the relevant school.
That neither parent denigrate the other to or in the hearing of…
Continue reading RAIMER & WALCUTT
Sign in free to access the full text
- AGLC
- RAIMER & WALCUTT [2020] FCCA 1686
- Case
- [2020] FCCA 1686
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to make orders for equal shared parental responsibility, the living arrangements for the children, and the time the children would spend with each parent. The court also had to consider the evidence presented, including a private report writer's report and the position of the Independent Children's Lawyer, in determining what final orders would be in the children's best interests.
Judge O'Sullivan discharged all previous parenting orders and made orders for the mother to have sole parental responsibility and for the children to live with her. The father was to spend time with X according to his wishes. For Y, time spent with the father was contingent on him completing a Men's Behavioural Change Program and attending family therapy with Y, at his expense. Thereafter, Y was to communicate and spend time with the father according to her wishes, with the mother to facilitate this as far as practicable. The court also made orders regarding communication of serious illness or injury, school reports, and prohibiting denigration of either parent. Crucially, the court noted that to the extent any orders were inconsistent with an intervention order made in the Victorian Magistrates Court, the intervention order would continue to operate. The mother was authorised to obtain passports for the children without the father's consent. The appointment of the Independent Children's Lawyer was discharged.
Orders
Orders of the court
1.
All previous parenting orders regarding the children, X born in 2004 (“X”) and Y born in 2006 (“Y”) (collectively, “the children”) be discharged.
2.
The mother have sole parental responsibility for the children.
3.
The children live with the mother.
4.
X spend time with the father according to his wishes.
5.
After the father completes 10 sessions of a Men's Behavioural Change Program (and provide proof of these sessions to the mother), the father and Y attend Family Therapy with Ms B (or other Family Therapist as agreed between the mother and father) at the father's expense.
6.
Thereafter, Y communicate and spend time with the father according to her wishes.
7.
If Y expresses a wish to spend time or communicate with the father, the mother will facilitate this time/communication as far as practicable.
8.
For the purposes of Order 5 the father provide the manger or director of the Men’s Behavioural Change Program and the mother provide the Family Therapist with a copy of these orders and the reasons for judgment.
9.
The mother shall:
(a) keep the father advised as soon as practicable of any serious illness or injury sustained by the children or either of them and details as to the treatment; and
(b) provide the father with copies of each of the children’s school reports as soon as practicable after receiving them from the relevant school.
10.
That neither parent denigrate the other to or in the hearing of the children nor allow any other person to do so.
11.
To the extent orders 4, 5, 6 or 7 are inconsistent with the intervention order made in the Victorian Magistrates Court on 15 October 2019 pursuant to the provisions of s.68P of the Family Law Act 1975 (Cth) those provisions of these orders should continue to operate.
12.
Upon the Court noting that pursuant to Order 2 the mother has sole parental responsibility then for the purposes of the Australian Passports Act 2005 (Cth) the mother is authorised to obtain any passport or travel document required to facilitate the children travelling overseas without first notifying or obtaining the consent of the father.
13.
The appointment of the Independent Children's Lawyer be discharged after meeting with the children to explain these orders.
14.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.