RIVERO & MELLOTT - [2010] FMCAfam 237

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RIVERO & MELLOTT

[2010] FMCAfam 237

FAMILY LAW – Final arrangements for care of child aged 3 years and ten months – best interests – equal time arrangement – what is reasonably practicable – nature of parties’ parenting relationship – parties’ facility to communicate.

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

Rivero & Mellott [2009] FMCAfam 640
MRR v GR [2010] HCA4
Silas & Barry [2009] FMCAfam 448

Bright v Bright (1995) FLC 92-570
Astor & Astor [2007] FamCA 355

Applicant:

MR RIVERO

Respondent:

MS MELLOTT

File Number:

ADC 1333 of 2009

Judgment of:

Brown FM

Hearing date:

3 March 2010

Date of Last Submission:

3 March 2010

Delivered at:

Adelaide

Delivered on:

15 March 2010

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:

Judith Jordan

ORDERS

In addition to the final children’s orders made by consent on 25 February 2010 it is further ordered by consent

The child [X] born [in] 2006 be under the care of Dr Gordon Eckert & Associates when she is in Adelaide save and except in an emergency.

IT IS FURTHER ORDERED

During the remainder of 2010 the current living arrangements for the child be maintained pursuant to which she lives with each of her parents, save and except for periods of agreed holidays and for agreed special occasions, in a rotating fortnightly schedule as follows:
(a)In week one of a two week cycle:
(i)With the father from Monday at 9:00am until Wednesday at 9:00am;
(ii)With the mother from Wednesday at 9:00am until Saturday at 9:00am;
(iii)With the father from Saturday at 9:00am until Monday at 9:00am.
(b)In week two of a two week cycle:
(i)With the mother from Monday at 9:00am until Thursday at 9:00am;
(ii)With the father from Thursday at 9:00am until Saturday at 9:00am;
(iii)With the mother from Saturday at 9:00am until Monday at 9:00am.
From the start of 2011 the schedule set out in order (2) above hereof be modified so that the father spends an additional night per fortnight with the child as follows:
(a)In week one of a two week cycle:
(i)With the father from Monday at 9:00am until Wednesday at 9:00am;
(ii)With the mother from Wednesday at 9:00am until Saturday at 9:00am;
(iii)With the father from Saturday at 9:00am until Monday at 9:00am.
(b)In week two of a two week cycle:
(i)With the mother from Monday at 9:00am until Wednesday at 9:00am;
(ii)With the father from Wednesday at 9:00am until Saturday at 9:00am;
(iii)With the mother from Saturday at 9:00am until Monday at 9:00am.
Order (3) hereof be suspended during all periods of school holidays and during each such holiday period the child will live with each of her parents in alternating blocks of seven days save and except for the specific special occasions dealt with by the current orders of 25 February 2010 or unless the parties agree otherwise.
From the commencement of…

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 & MELLOTT

Details

AGLC: RIVERO & MELLOTT [2010] FMCAfam 237
Case: [2010] FMCAfam 237
Decision Date: 15 March 2010

CaseChat Overview and Summary

In the Family Court of Australia, the case of Rivero & Mellott involved a dispute between the parents, Mr Rivero and Ms Mellott, over the care and custody arrangements for their daughter, born in 2006. The matter was resolved by consent, with the parents agreeing on certain terms regarding the child's care, living arrangements, and holidays. The court was required to consider and approve the terms of the consent orders that the parents had negotiated.

The primary legal issue the court needed to decide was whether the proposed consent orders were in the best interests of the child. The court considered various factors, including the health and welfare of the child, the ability of each parent to provide for the child's needs, and the importance of maintaining a stable and consistent routine for the child. Given that the parents had reached an agreement that was detailed and took into account the child's needs, the court was satisfied that the proposed orders were in the best interests of the child.

The court approved the consent orders, which included detailed provisions for the child's medical care, living arrangements for the remainder of 2010, and a modified schedule starting in 2011 that allowed for an additional night per fortnight with the father. The orders also included provisions for the child to live with each parent for equal periods during school terms from the start of 2012, with specific arrangements for school holidays. All other applications were dismissed.

Orders

Orders of the court

In addition to the final children’s orders made by consent on 25 February 2010 it is further ordered by consent

The child [X] born [in] 2006 be under the care of Dr Gordon Eckert & Associates when she is in Adelaide save and except in an emergency.

IT IS FURTHER ORDERED

During the remainder of 2010 the current living arrangements for the child be maintained pursuant to which she lives with each of her parents, save and except for periods of agreed holidays and for agreed special occasions, in a rotating fortnightly schedule as follows:

(a) In week one of a two week cycle:

(i) With the father from Monday at 9:00am until Wednesday at 9:00am;

(ii) With the mother from Wednesday at 9:00am until Saturday at 9:00am;

(iii) With the father from Saturday at 9:00am until Monday at 9:00am.

(b) In week two of a two week cycle:

(i) With the mother from Monday at 9:00am until Thursday at 9:00am;

(ii) With the father from Thursday at 9:00am until Saturday at 9:00am;

(iii) With the mother from Saturday at 9:00am until Monday at 9:00am.

From the start of 2011 the schedule set out in order (2) above hereof be modified so that the father spends an additional night per fortnight with the child as follows:

(a) In week one of a two week cycle:

(i) With the father from Monday at 9:00am until Wednesday at 9:00am;

(ii) With the mother from Wednesday at 9:00am until Saturday at 9:00am;

(iii) With the father from Saturday at 9:00am until Monday at 9:00am.

(b) In week two of a two week cycle:

(i) With the mother from Monday at 9:00am until Wednesday at 9:00am;

(ii) With the father from Wednesday at 9:00am until Saturday at 9:00am;

(iii) With the mother from Saturday at 9:00am until Monday at 9:00am.

Order (3) hereof be suspended during all periods of school holidays and during each such holiday period the child will live with each of her parents in alternating blocks of seven days save and except for the specific special occasions dealt with by the current orders of 25 February 2010 or unless the parties agree otherwise.

From the commencement of 2012 the child live with each of her parents, during school terms, for equal periods of time moving between her parents respective households on a weekly basis, subject to the arrangements for school holidays set out in order (4) hereof, which shall prevail in respect of school holidays from the start of 2011 onwards.

All applications be otherwise dismissed.

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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