Rivero and Mellott - [2009] FMCAfam 640

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RIVERO & MELLOTT

[2009] FMCAfam 640

FAMILY LAW – Child aged 3 years – interim arrangements for care – parties have previously agreed on shared care regime – orders made to that effect – arrangement almost immediately breaks down – high level of parental conflict – whether appropriate to apply presumption of equal parental responsibility – best interests – family violence – benefits of meaningful parental relationships.

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

Goode & Goode (2006) FLC 93-286
In the Marriage of Patsalou (1994) 18 Fam LR 426
JG & BG 18 Fam LR 255

Applicant:

MR RIVERO

Respondent:

MS MELLOTT

File Number:

ADC 1333 of 2009

Judgment of:

Brown FM

Hearing date:

22 June 2009

Date of Last Submission:

22 June 2009

Delivered at:

Adelaide

Delivered on:

25 June 2009

REPRESENTATION

Counsel for the Applicant:

Ms Nelson QC

Solicitors for the Applicant:

Jane Ekin-Smyth

Counsel for the Respondent:

Mr Noble

Solicitors for the Respondent:

Andersons

ORDERS

UNTIL FURTHER OR OTHER ORDER:

Order 2 of the orders made on 20 May 2009 in respect of the child of the marriage [X] born in 2006 recommence at 9:00am on Saturday, 27 June 2009 with the child living with the father until 9:00am on the following Monday, 29 June 2009 and thereafter the shared parenting regime envisaged by the aforesaid order to continue.
The child be exchanged between the parties to give effect to order 1 hereof at the McDonald’s Restaurant at [address omitted] or such other location as the parties may mutually agree.
The parties are restrained and an injunction issues restraining each of them from denigrating or abusing the other to, or in the presence of, or within hearing of the child.
Pursuant to section 68R of the Family Law Act 1975 the Domestic Violence Restraining Order made on the 28 May 2009 be varied so that the father may approach the mother for the purpose of giving effect to order 1 and 2 hereof.
The parties exchange all necessary information regarding the child’s care welfare and other day to day needs in writing in a communication book to be exchanged between them on each occasion the child moves between their respective households.
In the event the child is in the care of the mother on Father’s Day the child will spend between midday and 4:30pm on Father’s Day with the father or at such other times as the parties may mutually agree.
The parties share responsibility for issues related to the child’s health and in the event the child receives medical treatment whilst she is in the care of one of her parents that parent shall inform the other of the name of the medical practitioner concerned and provide details of any diagnosis and treatment prescribed to the child by that medical practitioner.
The procedural orders made on 20 May 2009 remain in force and the parties’ applications be listed for further direction on 24 July 2009…

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 Rivero and Mellott

Details

AGLC: Rivero and Mellott [2009] FMCAfam 640
Case: [2009] FMCAfam 640
Decision Date: 25 June 2009

CaseChat Overview and Summary

Rivero and Mellott is a case before the Family Court of Australia, concerning the dispute between the parents over the custody and care of their child, born in 2006. The primary issues revolved around the recommencement of a previous shared parenting arrangement, the specific times and locations for the child exchanges, and measures to ensure the child's welfare and protection from parental conflict. The court was required to consider the best interests of the child, as per the Family Law Act 1975, and determine whether the existing orders should be reinstated or modified.

The court meticulously reviewed the existing orders and the history of the case, focusing on the need to balance the rights of both parents with the paramount need to protect the child. It was essential to ensure that the child could transition smoothly between parents while avoiding exposure to any form of parental conflict or abuse. The court also addressed the need to facilitate communication between the parents regarding the child's health and welfare, and to allow the father to visit the child on special occasions like Father's Day.

In its ruling, the court ordered the recommencement of the shared parenting arrangement with specific times and locations for child exchanges, and enjoined both parents from denigrating or abusing each other in the presence or hearing of the child. The Domestic Violence Restraining Order was also varied to allow the father to approach the mother for the purpose of child exchanges. Furthermore, the court mandated the exchange of necessary information regarding the child's care in a communication book and shared responsibility for the child's health issues. The procedural orders from a previous hearing were maintained, and the parties' applications were listed for further direction.

The final orders included a reinstatement of the shared parenting arrangement with specific timings and locations for child exchanges, restrictions on parental communication in the presence of the child, modifications to the Domestic Violence Restraining Order, and provisions for information exchange and shared responsibility for the child's health. The court also scheduled a further hearing to decide on the final hearing of the parties' applications and the potential need for a family assessment report.

Orders

Orders of the court

UNTIL FURTHER OR OTHER ORDER:

Order 2 of the orders made on 20 May 2009 in respect of the child of the marriage [X] born in 2006 recommence at 9:00am on Saturday, 27 June 2009 with the child living with the father until 9:00am on the following Monday, 29 June 2009 and thereafter the shared parenting regime envisaged by the aforesaid order to continue.

The child be exchanged between the parties to give effect to order 1 hereof at the McDonald’s Restaurant at [address omitted] or such other location as the parties may mutually agree.

The parties are restrained and an injunction issues restraining each of them from denigrating or abusing the other to, or in the presence of, or within hearing of the child.

Pursuant to section 68R of the Family Law Act 1975 the Domestic Violence Restraining Order made on the 28 May 2009 be varied so that the father may approach the mother for the purpose of giving effect to order 1 and 2 hereof.

The parties exchange all necessary information regarding the child’s care welfare and other day to day needs in writing in a communication book to be exchanged between them on each occasion the child moves between their respective households.

In the event the child is in the care of the mother on Father’s Day the child will spend between midday and 4:30pm on Father’s Day with the father or at such other times as the parties may mutually agree.

The parties share responsibility for issues related to the child’s health and in the event the child receives medical treatment whilst she is in the care of one of her parents that parent shall inform the other of the name of the medical practitioner concerned and provide details of any diagnosis and treatment prescribed to the child by that medical practitioner.

The procedural orders made on 20 May 2009 remain in force and the parties’ applications be listed for further direction on 24 July 2009 at 9:30am on which occasion consideration will be given as to whether or not the parties competing applications should be fixed for final hearing and whether a family assessment report should be ordered.

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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