Trejo and Meraz - [2011] FMCAfam 91

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TREJO & MERAZ

[2011] FMCAfam 91

FAMILY LAW – Parenting – residence.

Family Law Act 1975, ss.11E, 13C, 60CC, 60B, 60CA, 61DA, 65DAA

Dylan & Dylan [2007] FamCA 842
Goode & Goode (2006) FLC 93-286
Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
Pitkin & Hendry [2008] FamCA 186
Lansa & Clovelly [2010] FamCA 80
MRR & GR [2010] HCA 4
AMS & AIF (1999) 199 CLR 160

Applicant:

MR TREJO

Respondent:

MS MERAZ

File Number:

PAC1485 of 2010

Judgment of:

Harman FM

Hearing date:

25 January 2011

Date of Last Submission:

25 January 2011

Delivered at:

Parramatta

Delivered on:

25 January 2011

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

Mr Auld

Solicitors for the Respondent:

Gonzalez & Co

ORDERS

All prior parenting orders with respect to the children [X] born [in] 1997 and [Y] born [in] 2001 and [Z] born [in] 2006 shall be and are hereby discharged.
Until further order the applicant and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children [X] born [in] 1997 (male) and [Y] born [in] 2001 (male) and [Z] born [in] 2006 (female) from the Commonwealth of Australia to expire as regards [X] on [date omitted] 2012, as regards [Y] [date omitted] 2016 and as regards [Z] [date omitted] 2021.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
That the parents of [X], [Y] and [Z] namely Mr Trejo and Ms Meraz shall have equal shared parental responsibility for them.
[X], [Y] and [Z] shall live with their mother.
[X], [Y] and [Z] shall spend time with their father:
(a)For the third and seventh of each weekend of the ACT school term from 5pm Friday until 5 pm Sunday.
(b)For one half of each of the ACT school holiday period being the first half in 2011 and second half in 2012 and each alternate year thereafter; and
(c)Such further and/or other times as agreed between the parents…

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 Meraz

Details

AGLC: Trejo and Meraz [2011] FMCAfam 91
Case: [2011] FMCAfam 91
Decision Date: 25 January 2011

CaseChat Overview and Summary

The case involved Trejo and Meraz, parents of three children. The dispute was centred on parenting arrangements and the protection of the children from being removed from Australia. The Federal Magistrates Court of Australia was the forum for this case. The court was required to decide on the issue of whether to discharge existing parenting orders and establish new ones, including restrictions on the removal of the children from Australia. Additionally, the court had to determine the living arrangements and visitation schedules for the children.

The court determined that the existing parenting orders should be discharged and new ones established. The new orders included a restriction on the removal of the children from Australia, with different expiry dates for each child. The court also ordered equal shared parental responsibility for the children and stipulated that they should live with their mother. The visitation schedule for the father was set out in detail, including specific times during weekends and school holidays. The court further ordered the placement of the children’s names on the airport watch list and mandated communication between the parents regarding the children's welfare, education, and health. Both parents were also directed to attend a family consultant service to develop communication strategies.

In summary, the court discharged all prior parenting orders and established new ones that included restrictions on the removal of the children from Australia, equal shared parental responsibility, specific living and visitation arrangements, and detailed communication protocols between the parents. The court also mandated the use of family consultant services to improve communication between the parents.

Orders

Orders of the court

1. All prior parenting orders with respect to the children [X] born [in] 1997 and [Y] born [in] 2001 and [Z] born [in] 2006 shall be and are hereby discharged.

2. Until further order the applicant and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children [X] born [in] 1997 (male) and [Y] born [in] 2001 (male) and [Z] born [in] 2006 (female) from the Commonwealth of Australia to expire as regards [X] on [date omitted] 2012, as regards [Y] [date omitted] 2016 and as regards [Z] [date omitted] 2021.

3. The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.

4. Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.

5. The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

6. The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.

7. That the parents of [X], [Y] and [Z] namely Mr Trejo and Ms Meraz shall have equal shared parental responsibility for them.

8. [X], [Y] and [Z] shall live with their mother.

9. [X], [Y] and [Z] shall spend time with their father:

(a) For the third and seventh of each weekend of the ACT school term from 5pm Friday until 5 pm Sunday.

(b) For one half of each of the ACT school holiday period being the first half in 2011 and second half in 2012 and each alternate year thereafter; and

10. For the purpose of school holiday time:

(a) For the first half of the short holidays being those occurring in April, June/July, September/ October shall commence at 10am and conclude 5pm on the second (middle) Sunday of the holiday period;

(b) For the second half of short holidays to commence at 10am on the second (middle) Sunday and to conclude at 5pm on the last Sunday of the holiday period;

(c) For the first half of the Christmas school holidays to commence at 10am on the day after school breaks up and to conclude at 5pm a fortnight later.

(d) For the second half of the Christmas school holidays shall be taken to commence absent agreement between the parents from 10am 5 January and conclude at 5pm a fortnight later.

11. For the purpose of [X], [Y] and [Z] spending time with their Father that Mr Trejo shall collect them from Ms Meraz at the commencement of each period at [omitted] railway station and Mr Trejo shall return the children to Ms Meraz at the same venue at the conclusion of each period.

12. When the children are spending or are due to spend time with Mr Trejo that:

(a) Mr Trejo shall be responsible for his fare to Canberra to collect the children and his fare home.

(b) Ms Meraz shall be responsible for Mr Trejo’s and the children’s fare from Canberra to Sydney ([omitted]) at the conclusion/return of the children.

13. Both parents shall refrain from physically disciplining the children and in particular from striking them with any object.

14. Each parent shall be entitled to communicate with the children by telephone and or email or other internet based program at any time and with reasonable frequency while in the other parents care.

15. Each parent shall ensure that they advise the other parent at all times of their residential address, contact telephone number, email address (if they have one) and the children’s email addresses (if they have them including any school account) and so as to allow telephone and email communication to occur.

16. Each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to ensure each parent’s contact details are fully recorded by any school, pre school, day care centre or before and after school service that any of the children attend and further to ensure that each parent is able to contact any of those services to speak with staff regarding the children’s general welfare and attendance and to obtain copies of reports, school photo order forms and any correspondence regarding the children.

17. Ms Meraz shall ensure if not already done so that full details of the above being schools are provided to Mr Trejo and that Mr Trejo is advised forthwith of any changes.

18. Each parent is entitled to attend at and participate in any activity at any school to which parents are invited to attend or participate.

19. Each parent shall forthwith and contemporaneous with the event advise the other of any illness, emergency, hospitalisation required or experienced by any of the children and will provide such consents and authorities as necessary so that both parents can consult with any treater and obtain any advice or information from them.

20. Pursuant to s.11E of the Family Law Act 1975 direct each of the parents or if more expeditious the ICL to contact Family Consultant

Mr P to obtain a referral and contact details for a service proximate to each parents residence to assist each parent in developing communication strategies with the other and preferably such services to be culturally sensitive or specific and upon such referral being made and pursuant to s.13C of the Family Law Act each parent to attend for the purpose of intake and that service to determine what course is suitable to the parents.

21. Remove all issues from the list of cases awaiting hearing and dismiss all outstanding applications and responses.

22. Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

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.