Legal Research
Cases
Trejo and Avalos

Trejo and Avalos

Case [2011] FMCAfam 1348 8 December 2011

Parental Responsibility

Shared Care Arrangements

Child's Best Interests

Contact Orders

Special Conditions of Care

Family Dispute Resolution

Parental Communication

Family Law

Type to search within this case.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TREJO & AVALOS

[2011] FMCAfam 1348

FAMILY LAW – Interim parenting application – issues and allegations of family violence.

Family Law Act 1975, ss.4, 13C, 60B, 60CA, 60CG, 60K, 61DA, 65DAA, 65F, 69ZT, 69ZX, 69ZN, 90RD
Evidence Act 1995, ss.55, 76, 79, 144, Part 3.1
Federal Magistrates Court Rules 2001, Regulations 15.06A, 15.07
Family Law Rules 2004, Regulation 15.41, Part 15.5

Symes & Glover [2011] FMCAfam 735
Makita & Sprowls [2001] NSWCA 305
Goode & Goode(2006) FLC 93 - 286
Cowling & Cowling [1998] FamCA 19
Mabo v Queensland [1992] HCA 23
Minister of Ethnic Affairs v Teoh [1995] HCA20
B & B & Minister for Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621
AMS & AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Pitken & Hendry [2008] FamCA 186
Johnson & Page [2007] FamCA 1235
Jones & Dunkel (1959) 101 CLR 293

Applicant:

MR TREJO

Respondent:

MS AVALOS

File Number:

PAC 3535 of 2011

Judgment of:

Harman FM

Hearing date:

22 November 2011

Date of Last Submission:

22 November 2011

Delivered at:

Parramatta

Delivered on:

8 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Stenhouse

Solicitors for the Applicant:

John Hall Lawyers

Counsel for the Respondent:

Mr Greenaway

Solicitors for the Respondent:

A R Walmsley & Co

ORDERS

All prior parenting orders with respect to [X] born [in] 2006 are discharged.
Subject only to order two hereof that the parents Mr Trejo (the applicant) and Ms Avalos (the respondent) of [X] shall have equal shared parental responsibility for him.
Notwithstanding the above [X] shall, commencing Term One 2012, be enrolled at and attend such school as may be selected and nominated by Ms Avalos and provided further:
(a)
At the time that [X] is enrolled at the school selected by

Ms Avalos the details and contact details of both parents shall be included as both parents as emergency contact persons;
(b)Ms Avalos shall be at liberty to provide to the school selected by her a copy of these orders and the school is requested to ensure that any file or record for [X] clearly notes these orders as well as a request that the address and contact details of Ms Avalos not be disclosed to Mr Trejo save with Ms Avalos’ fully informed consent in writing.

PENDING FURTHER ORDER

[X] shall live with his mother.
[X] shall spend time with his father as follows:
(a)Until the conclusion of Term 4 2011 from 9am until 4pm each alternate Saturday commencing 10 December, 2011 and from 9am until 4pm each alternate Sunday commencing 11 December 2011
(b)From the conclusion of Term 4 2011 and until the commencement of Term 1 2012;
(i)Each weekend (save the weekend of 24 – 25 December 2011) from 9am Saturday until 11am Sunday;
(ii)From 3pm 25 December 2011 and until 6.30pm 26 December 2011.
(c)From Term 1 2012 and until Term 2 2012:
(i)Each alternate weekend from the conclusion of school…

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 Trejo and Avalos

Details

AGLC: Trejo and Avalos [2011] FMCAfam 1348
Case: [2011] FMCAfam 1348
Decision Date: 8 December 2011

CaseChat Overview and Summary

The case of Trejo and Avalos involved a dispute between the parents of a child born in 2006. The matter was heard before the Family Court of Australia. The central issue in this case was the determination of parenting arrangements for the child, including questions of shared parental responsibility, residence, and time-sharing schedules.

The court was required to decide on the appropriate parenting orders that would best serve the child's welfare. This involved balancing the principles of equal shared parental responsibility with the practicalities of the child's daily life, including education and contact with both parents. The court considered the child's needs, the parents' ability to care for the child, and the importance of maintaining a stable and consistent environment.

The court concluded that the child should reside with the mother but spend time with the father according to a detailed schedule that included weekends, holidays, and school terms. The court mandated that both parents have equal shared parental responsibility and ordered them to participate in a specific program designed to support children in similar situations. The court also outlined specific communication protocols between the parents and the child and required both parents to share health and educational information. The matter was adjourned to allow for further assessment and potential adjustments to the parenting arrangements.

Orders

Orders of the court

All prior parenting orders with respect to [X] born [in] 2006 are discharged.

Subject only to order two hereof that the parents Mr Trejo (the applicant) and Ms Avalos (the respondent) of [X] shall have equal shared parental responsibility for him.

Notwithstanding the above [X] shall, commencing Term One 2012, be enrolled at and attend such school as may be selected and nominated by Ms Avalos and provided further:

(a)

At the time that [X] is enrolled at the school selected by

Ms Avalos the details and contact details of both parents shall be included as both parents as emergency contact persons;

(b) Ms Avalos shall be at liberty to provide to the school selected by her a copy of these orders and the school is requested to ensure that any file or record for [X] clearly notes these orders as well as a request that the address and contact details of Ms Avalos not be disclosed to Mr Trejo save with Ms Avalos’ fully informed consent in writing.

PENDING FURTHER ORDER

[X] shall live with his mother.

[X] shall spend time with his father as follows:

(a) Until the conclusion of Term 4 2011 from 9am until 4pm each alternate Saturday commencing 10 December, 2011 and from 9am until 4pm each alternate Sunday commencing 11 December 2011

(b) From the conclusion of Term 4 2011 and until the commencement of Term 1 2012;

(i) Each weekend (save the weekend of 24 – 25 December 2011) from 9am Saturday until 11am Sunday;

(ii) From 3pm 25 December 2011 and until 6.30pm 26 December 2011.

(i) Each alternate weekend from the conclusion of school Friday until 6pm Sunday first period to occur the first weekend following [X]’s commencement of school.

(ii) Each intervening Friday from the conclusion of school until 7pm.

(d) From the commencement of Term 2 2012 and continuing pending further order:

(i) Each alternate weekend from the conclusion of school (or 3pm) Friday until the commencement of school (9am) the following Monday first such period to commence the first weekend of Term 2 2012 and to continue throughout school holiday without interruption and in the same pattern;

(ii) From the conclusion of school Friday until 7pm Friday in each intervening week (being the week when [X] is spending time with his Mother).

For the purpose of [X] passing into his father’s care that Mr Trejo shall collect [X] from [X]’s school if a school attendance day and commencing at the conclusion of school and, in all other circumstances, from [R] Police Station.

For the purpose of [X] passing into his Mother’s care Ms Avalos shall collect [X] from his school (if Mr Trejo’s time has concluded with a delivery to school) or otherwise from [R] Police Station.

Pursuant to s.13C of the Family Law Act 1975 each of the parties shall forthwith and within 7 days contact CentaCare on 1800 55 46 46 and for the purpose of arranging and attending the first available appointment with that agency for intake, assessment as to suitability to participate in the Keeping Kids in Mind program and to thereafter attend on such dates, times and places and to follow all reasonable directions and instructions of that agency to enable them to participate in and complete the Keeping Kids in Mind program.

Each parent shall be entitled to telephone and communicate with [X] between 6pm and 6.30pm on Tuesday, Thursday and Saturday (whilst [X] is in the care of the other parent) and with respect to same:

(a) Each parent shall ensure that they have provided to the other parent a contact number upon which [X] can be telephoned whilst in their care;

(b) Each parent shall provide to [X] such assistance as he may require in accepting calls or operating the telephone but shall otherwise ensure that [X] is allowed and able to speak with the other parent with privacy and without interruption or distraction.

10.

Each parent shall advise the other immediately of any significant illness or hospitalisation relating to [X] such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to be fully consulted, advised and involved in any treatment decisions and to visit and stay with [X] if hospitalised.

11.

Each parent will authorise and do all things, sign all documents and give all consents necessary to enable any relevant health or educational professional and any school attended by [X] to provide to each parent copies of reports and any other reports, information or documentation relevant to [X]’s health and education.

12.

This matter is adjourned for further mention, case management and if necessary the ordering of preparation of a family report and/or trial directions before Federal Magistrate Henderson at 9.30am on 3 February 2012.

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.

Citations

AGLC Citation

Trejo and Avalos [2011] FMCAfam 1348

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 10 of 10 shown

Symes and Glover
[2011] FMCAfam 735 Para 5

…My brother FM Halligan has recently had cause in Symes & Glover [2011] FMCAfam 735 to comment upon the filing of unduly lengthy and prolix material. Certainly in the context of this case I am conscious that Counsel have sought to avoid similar criticism by limiting the paragraphs of the 181 paragraph affidavit that I…
Pitken & Hendry
[2008] FamCA 186 Para 17

…Both the Full Court and eminent Judges of the Family Court of First Instance (see Murphy J in Pitkin & Hendry [2008] FamCA 186) have been clear that it may and in most circumstances probably will be more convenient to consider reasonable practicality as part of the s.60CC considerations.…
Johnson & Page
[2007] FamCA 1235 Para 7

…an unacceptable risk of [X] being so exposed. In coming to that determination I have had reference to the Full Court’s decision in Johnson & Page [2007] FamCA 1235and particular paragraph 62 – 72 thereof discussing the relevant principles to be applied by the Court.…
U v U
[2002] HCA 36 Para 8

…As the High Court made clear in U & U (2002) 211 CLR 238 the Court is also required to consider as a starting point the proposals of each party and to specifically raise with the parties any alternate proposal which may be formulated by the Court or any departure from the position each of the parties advance. In this…
Makita (Australia) Pty Ltd v Sprowles
[2001] NSWCA 305 Para 6

…simply not reported by Mr Trejo to any of the three report writers. In this regard one is drawn to the words of Justice Heydon in Makita & Sprowls [2001] NSWCA 305 in which his Honour said (at paragraph 59): “if [the report writer] report were to be useful it was necessary for her to comply with the prime duty of…
AMS v AIF
[1999] HCA 26

…23 Minister of Ethnic Affairs v Teoh [1995] HCA20 B & B & Minister for Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621 AMS & AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Pitken & Hendry [2008] FamCA 186 Johnson & Page [2007] FamCA 1235 Jones & Dunkel (1959) 101 CLR 293…
Minister for Immigration and Ethnic Affairs v Teoh
[1995] HCA 20 Para 3

…d guiding the application of the substantive provisions of the Family Law Act (see Mabo v Queensland [1992] HCA 23, Minister of Ethnic Affairs v Teoh [1995] HCA 20 and B & B and Minister for Immigration & Multicultural and Indigenous Affairs [2003] FamCA 62 1 ).…
Mabo v Queensland (No 2)
[1992] HCA 23 Para 3

…ed, may still have some application in forming and guiding the application of the substantive provisions of the Family Law Act (see Mabo v Queensland [1992] HCA 23, Minister of Ethnic Affairs v Teoh [1995] HCA 20 and B & B and Minister for Immigration & Multicultural and Indigenous Affairs [2003] FamCA 62 1 ).…
Cowling v Cowling
[1998] FAMCA 19 Para 12

…for the future”. b)Thus it is clear that the Full Court has accepted that which applied under previous case law (such as Cowling & Cowling [1998] FamCA 19 specifically referred to above) that findings of fact, on an interim level, should be made with some caution and trepidation and should generally only where th…
[2003] FAMCA 621
[2003] FAMCA 621

…abo v Queensland [1992] HCA 23 Minister of Ethnic Affairs v Teoh [1995] HCA20 B & B & Minister for Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621 AMS & AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Pitken & Hendry [2008] FamCA 186 Johnson & Page [2007] FamCA 1235 Jones & Dunkel (1959) 101 CLR…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
13C, 4, 60B, 60CA, 60CG, 60K, 61DA, 65DA... 14 mentions (from Para 5)
Evidence Act 1995 (Cth)
144, 55, 76, 79 9 mentions (from Para 7)
Family Law Rules 2004 (Cth)
1 mention (from Para 6)
Federal Magistrates Court Rules 2001 (Cth)
1 mention (from Para 4)