Raymond and Choate - [2011] FMCAfam 1108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAYMOND & CHOATE

[2011] FMCAfam 1108

FAMILY LAW – Parenting – mother with enmeshed relationship with child.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Raymond & Choate [2010] FMCAfam 451
MRR v GR [2010] HCA 4

Applicant:

MR RAYMOND

Respondent:

MS CHOATE

File Number:

SYC 2546 of 2007

Judgment of:

Altobelli FM

Hearing dates:

4-6 October 2011

Date of Last Submission:

6 October 2011

Delivered at:

Sydney

Delivered on:

17 November 2011

REPRESENTATION

Applicant:

Self-represented litigant

Respondent:

Self-represented litigant

Counsel for the Independent Children’s Lawyer:

Mr Barry

Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

That all previous parenting orders are discharged.
That the Father have sole parental responsibility for the Child [X] born [in] 2000.
That the Child live with the Father.
That the Child spend time with the Mother as follows:
(a)Each alternate Saturday from 10.00am until 2.00pm (extending to 4:00pm once the Child commences high school in 2012) at either [omitted] Shopping Centre or [omitted] Shopping Centre, [address omitted], Sydney, or such other venue as the parents agree from time to time.
(b)In the event that the child's birthday does not fall on a day she would be spending time with the Mother in accordance with Order 4 (a) then on the Child's birthday from 10.00am to 2.00pm.
(c)In the event that the Mother's birthday does not fall on a day the Child would be spending time with the Mother in accordance with Order 4(a) then on the Mother's birthday from 10.00am to 2.00pm if it is a non-school day and from 4.00pm to 8.00pm if the Mother's birthday falls on a school day.
(d)On Mother's Day from 10.00am to 4.00pm.
(e)On Christmas Day from 9.00am to 1.00pm in odd-numbered years and from 1.00pm to 5.00pm in even-numbered years.
(f)Any variation to the above as agreed between the parties in writing.
That for the purpose of changeover in Order 4 (a) herein the Child will be delivered by the Father or a nominee of the Father to the main entrance of the shopping centre at the commencement of the time and collected by the Father or a nominee of the Father at the same location at the conclusion of the time or as agreed between the parties.
That for the purpose of changeover in order 4 (b), (c) and (d) the Father or the Father's nominee is to deliver the Child to the Mother's residence at the commencement of time and the Mother or her nominee is to return the Child to the Father's residence at the conclusion of time, but neither parent is to leave the motor vehicle that they are in.
That the Child’s contact with the Mother in accordance with Order 4 above is to be suspended once per year for no more than two weeks, provided that the Father gives one month written notice to the Mother of his intention to spend time with the Child.
That the parties be restrained from speaking or permitting any…

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 Raymond and Choate

Details

AGLC: Raymond and Choate [2011] FMCAfam 1108
Case: [2011] FMCAfam 1108
Decision Date: 17 November 2011

CaseChat Overview and Summary

Raymond and Choate was a case before the Family Court of Australia that centred on the arrangements for the care of a child born in 2000. The primary concern of the court was to determine the best arrangements for the child's welfare, taking into account the respective situations of the parents and the child's needs. The case involved detailed considerations regarding the child's living arrangements, contact times with each parent, and other ancillary matters such as communication between the parents and the exchange of information about the child's welfare.

The court had to decide several legal issues, including the allocation of parental responsibility, the primary residence of the child, and the specific arrangements for the child's contact with the non-resident parent. This involved balancing the best interests of the child against the rights and responsibilities of each parent. Additionally, the court needed to address the practical aspects of implementing the contact arrangements, including changeover procedures, holiday considerations, and the exchange of information between the parents.

In reaching its decision, the court considered various factors including the stability of each parent's situation, the ability of each parent to provide for the child's needs, and the impact of the proposed arrangements on the child's welfare. The court also took into account the child's age and developmental stage, as well as any specific needs or preferences the child might have. Ultimately, the court determined that it was in the child's best interests for the father to have sole parental responsibility, for the child to live with the father, and for the mother to have specific, structured contact times with the child. The court outlined detailed arrangements for these contacts, including specific times, locations, and conditions for changeovers.

The final orders of the court provided for the discharge of previous parenting orders and established new orders that detailed the allocation of parental responsibility, the primary residence of the child with the father, and the specific contact arrangements with the mother. The orders also included provisions for the exchange of information, communication between the parents, and other practical matters to ensure the smooth implementation of the arrangements.

Orders

Orders of the court

That all previous parenting orders are discharged.

That the Father have sole parental responsibility for the Child [X] born [in] 2000.

That the Child live with the Father.

That the Child spend time with the Mother as follows:

(a) Each alternate Saturday from 10.00am until 2.00pm (extending to 4:00pm once the Child commences high school in 2012) at either [omitted] Shopping Centre or [omitted] Shopping Centre, [address omitted], Sydney, or such other venue as the parents agree from time to time.

(b) In the event that the child's birthday does not fall on a day she would be spending time with the Mother in accordance with Order 4 (a) then on the Child's birthday from 10.00am to 2.00pm.

(c) In the event that the Mother's birthday does not fall on a day the Child would be spending time with the Mother in accordance with Order 4(a) then on the Mother's birthday from 10.00am to 2.00pm if it is a non-school day and from 4.00pm to 8.00pm if the Mother's birthday falls on a school day.

(d) On Mother's Day from 10.00am to 4.00pm.

(e) On Christmas Day from 9.00am to 1.00pm in odd-numbered years and from 1.00pm to 5.00pm in even-numbered years.

(f) Any variation to the above as agreed between the parties in writing.

That for the purpose of changeover in Order 4 (a) herein the Child will be delivered by the Father or a nominee of the Father to the main entrance of the shopping centre at the commencement of the time and collected by the Father or a nominee of the Father at the same location at the conclusion of the time or as agreed between the parties.

That for the purpose of changeover in order 4 (b), (c) and (d) the Father or the Father's nominee is to deliver the Child to the Mother's residence at the commencement of time and the Mother or her nominee is to return the Child to the Father's residence at the conclusion of time, but neither parent is to leave the motor vehicle that they are in.

That the Child’s contact with the Mother in accordance with Order 4 above is to be suspended once per year for no more than two weeks, provided that the Father gives one month written notice to the Mother of his intention to spend time with the Child.

That the parties be restrained from speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant manner in the presence or hearing of the Child.

That within 14 days of these orders and within 14 days of the Child's subsequent enrolment at any school the Father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the Child may attend from time to time, that school forward directly to the Mother copies of the Child's school reports and any written material pertaining to the Child's academic and extra-curricular activities.

10.

That the Father shall keep the Mother informed of any significant medical treatment the Child receives or in the event the Child is hospitalised.

11.

That each party advise the other party and keep the other party advised of their current address and contact telephone numbers and advise the other party of any changes to these details within seven days of such change occurring.

12.

That in the event the Father intends to take the Child on a holiday for a period of time in excess of two weeks the Father is to give the Mother one month's notice in writing and any time that the Mother does not spend with the Child as a result of the Father's actions shall be made up to the Mother as soon as reasonably possible.

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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