Torres and Torres (No.2) - [2012] FMCAfam 107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TORRES & TORRES (No.2)

[2012] FMCAfam 107

FAMILY LAW – Parenting – parental responsibility – children’s views – poor relationship between the parties.

Family Law Act 1975, ss.4, 10G, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65DAA, 65DA, 68B, 91B
Federal Magistrates Court Rules 2001, r.23.01A

Herridge & Handerson & Ors [2011] FamCAFC 156
In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713
Lindell & Ranteri [2010] FamCA 52
McCall & Clark [2009] FamCAFC 92
N & M [2006] FamCA 958; (2006) FLC 93-296
Torres & Torres [2010] FMCAfam 1456

Applicant:

MS TORRES

Respondent:

MR TORRES

File Number:

SYC 5754 of 2007

Judgment of:

Monahan FM

Hearing dates:

5 and 6 December 2011

Date of Last Submission:

6 December 2011

Delivered at:

Sydney

Delivered on:

23 April 2012

REPRESENTATION

Counsel for the Applicant:

None

Solicitors for the Applicant:

Self Represented Litigant

Counsel for the Respondent:

None

Solicitors for the Respondent:

Self Represented Litigant

Counsel for the Independent Children’s Lawyer:

None

Independent Children’s Lawyer:

Legal Aid NSW - Ms O’Donnell

ORDERS

All previous orders in relation to the children [X], born [in] 1995, (“[X]”) [Y], born [in] 1997, (“[Y]”) and [Z], born [in] 1998, (“[Z]”) (or collectively “the children”) be and are hereby discharged.
The father have sole parental responsibility for the children.
The children live with the father.
[Y] and [Z] spend time with the mother as agreed or, failing agreement, as follows:
(a)each alternate Saturday in accordance with the current cycle between 11:30am and 1:30pm; and
(b)for any additional time as requested by [Y] and [Z] and agreed between the parties prior to such time occurring;
with such time to occur at any reasonable public place nominated by the mother and communicated by her to the father and [Y] by SMS text message at least 48 hours prior to the period of time to be spent between the mother, [Y] and [Z].
[X] spend time with the mother in accordance with his wishes.
For the purposes of the time that the children spend with the mother, changeovers occur at such place as may be agreed between the parties or, failing agreement, at [R] Shopping Centre.
In the event that the children express a wish to communicate with the mother, the father do all things to facilitate the children communicating with the mother by telephone, or other appropriate means, at all reasonable times.
In the event that the children express a wish to spend time, or communicate, with the maternal grandparents, the father take all reasonable steps to facilitate such time and such communication between the children and maternal grandparents.
The father ensure that the mother is kept informed of:
(a)any medical problems or illnesses suffered by the children while in the father’s care; and
(b)any other matter relevant to the child’s welfare.
For the purposes of communicating information between the parties about the children, the mother and the father communicate by SMS regarding matters of an urgent…

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 Torres and Torres (No.2)

Details

AGLC: Torres and Torres (No.2) [2012] FMCAfam 107
Case: [2012] FMCAfam 107
Decision Date: 23 April 2012

CaseChat Overview and Summary

In the matter of Torres and Torres (No.2), the court was called upon to determine parental responsibility and arrangements for the care and welfare of three children, [X], [Y], and [Z]. The parents had previously engaged in protracted litigation over the children's custody, with the court needing to balance the children's best interests against the respective rights and responsibilities of the parents.

The court faced several critical legal issues, including the determination of which parent should have sole parental responsibility, the allocation of living arrangements, and the establishment of visitation and communication schedules between the children and their non-resident parent. Furthermore, the court needed to consider the implications of the children's expressed wishes, their developmental needs, and the potential impact of the parents' conflict on the children's well-being.

The court concluded that sole parental responsibility should be awarded to the father, with the children residing primarily with him. However, the court recognised the importance of maintaining meaningful relationships between the children and their mother. It was determined that [Y] and [Z] would have regular visitation with their mother, with specific details regarding the times, locations, and conditions of these visits outlined in the orders. [X], who expressed a preference to spend time with his mother, was to have his wishes accommodated. The court emphasised the necessity for both parents to facilitate communication and interaction between the children and their maternal grandparents and to keep each other informed of significant events affecting the children's welfare. The court also mandated that both parents refrain from discussing the proceedings with the children and from disparaging each other in front of them.

The court's decision was grounded in a comprehensive assessment of the children's needs and the parents' capabilities, aiming to foster a stable and supportive environment for the children's ongoing development and well-being. The detailed orders reflect a balanced approach, seeking to honour the children's relationships with both parents while prioritising their best interests in the context of their parents' ongoing dispute.

Orders

Orders of the court

All previous orders in relation to the children [X], born [in] 1995, (“[X]”) [Y], born [in] 1997, (“[Y]”) and [Z], born [in] 1998, (“[Z]”) (or collectively “the children”) be and are hereby discharged.

The father have sole parental responsibility for the children.

The children live with the father.

[Y] and [Z] spend time with the mother as agreed or, failing agreement, as follows:

(a) each alternate Saturday in accordance with the current cycle between 11:30am and 1:30pm; and

(b) for any additional time as requested by [Y] and [Z] and agreed between the parties prior to such time occurring;

with such time to occur at any reasonable public place nominated by the mother and communicated by her to the father and [Y] by SMS text message at least 48 hours prior to the period of time to be spent between the mother, [Y] and [Z].

[X] spend time with the mother in accordance with his wishes.

For the purposes of the time that the children spend with the mother, changeovers occur at such place as may be agreed between the parties or, failing agreement, at [R] Shopping Centre.

In the event that the children express a wish to communicate with the mother, the father do all things to facilitate the children communicating with the mother by telephone, or other appropriate means, at all reasonable times.

In the event that the children express a wish to spend time, or communicate, with the maternal grandparents, the father take all reasonable steps to facilitate such time and such communication between the children and maternal grandparents.

The father ensure that the mother is kept informed of:

(a) any medical problems or illnesses suffered by the children while in the father’s care; and

(b) any other matter relevant to the child’s welfare.

10.

For the purposes of communicating information between the parties about the children, the mother and the father communicate by SMS regarding matters of an urgent nature, and otherwise communicate by email or SMS about day to day matters, including arrangements for each party to spend time with the children.

11.

During any period referred to in these Orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the child notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

12.

Within 14 days of the date of these Orders (and thereafter within 14 days after the enrolment of any of the children in a different school) the father do all acts and things and give all irrevocable authorities necessary to ensure that the children’s school(s) forward directly to the mother at her current postal address and at her expense (if applicable) copies of all of each child’s school reports, merit cards and any written material pertaining to each child’s academic and extra-curricular activities.

13.

Within seven (7) days of receipt, the father provide the mother with copies of all order forms for school photographs for each child.

14.

Both parties be restrained from the following:

(a) discussing these proceedings with, or in the presence or hearing of, any of the children or from permitting any third party to do so; and

(b) denigrating, criticising, or permitting any third party to denigrate or criticise:

(i) the other party;

(ii) any partner of the other party; or

(iii) any family member of the other party

in the presence or hearing of any of the children.

15.

Both parties advise, and keep each other advised, of their current telephone numbers and contact addresses and notify the other party of any changes to those details as soon as practicable, and no later than 24 hours after any such changes.

16.

Before any application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the children or of the parties:

(a) the parties do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (“the Act”) or by the Commonwealth Attorney General; or

(b) the mother and the father participate in family dispute resolution with a person authorised under s.10G of the Act.

17.

Subject to the following, the appointment of the Independent Children’s Lawyer be discharged:

(a) the Independent Children’s Lawyer provide a sealed copy of these Orders to the children’s schools within seven (7) days; and

(b) the Independent Children’s Lawyer explain these Orders to the children.

18.

All extant applications before this Court be otherwise dismissed.

AND THE COURT NOTES THAT:

(A) Pursuant to ss.65DA(2) and 62B 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 are set out in Annexure A and those particulars are included in these orders.

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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