Udall and Oaks - [2010] FMCAfam 1482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UDALL & OAKS

[2010] FMCAfam 1482

FAMILY LAW – Parenting arrangements – allegations of physical abuse – allegations of sexual abuse.

Family Law Act 1975, ss.4, 60CC, 60B, 60CA, 60I, 61DA, 65DAA(5)
Evidence Act 1995
Declaration of Human Rights 1948

Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No.2) [2010] FamCAFC 101
MRR & GR [2010] HCA 4
M & M [1988] HCA 68; (1988) 166 CLR 69
Re W Sexual Abuse Standard of Proof [2004] FamCA 768
A & A [1998] FamCA 25
B & B (1993) FLC 92-357
Re David (1997) FLC 92-776
S & S 1994 NZFLR 657
AA and SNA 2009 BCSC 387
Lamusga 29/04/2004 SCCal Unreported 107355
PM & MN 2008 BCSC 1501
IMMS & DJS 2010 BCSC 306
Abbott & Abbott BCSC 323
Bennett & Bennett [2001] FamCA 462
R & K-R [2010] Benjamin J unreported
Briginshaw & Briginshaw [1938] HCA 34
“Parental Alienation Syndrome and Alienated Children: Getting it wrong in child custody cases” (2002), Carol Bruch
“Parental Alienation Syndrome: Its time has come”, Katherine Andre 2005
“Parental Alienation Syndrome” Bone & Walsh
“The Alienated Child” Kelly and Johnson 2001
“Expanding the parameters of parental alienation syndrome” Cartwright 1993
“Children’s Alignments with Parents in Highly Conflicted Custody Cases” Lampel et al 1996
“Children Resisting Post Separation Contact with a Parent: Concepts, controversies and conundrums” Fiddler & Bala January 2010

Applicant:

MS UDALL

Respondent:

MR OAKS

File Number:

PAC 134 of 2009

Judgment of:

Harman FM

Hearing dates:

19, 20, 21 October 2010

Date of Last Submission:

21 October 2010

Delivered at:

Parramatta

Delivered on:

22 October 2010

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Legal Aid NSW

Counsel for the Respondent:

Ms Petrie

Solicitors for the Respondent:

Abigails Solicitors

ORDERS

All existing parenting orders with respect to the child, [X], shall be and are hereby discharged and specifically the interim airport watch-list order made 23 January 2009.
The parents of [X], namely, Ms Udall and Mr Oaks , shall have equal shared parental responsibility for [X].
[X] shall live with his mother, Ms Udall.
[X] shall spend time with his father as follows:
(a)until the commencement of term one 2011 - each alternate Saturday from 9.30am till 4.30pm commencing 6 November and, in addition, from 11am till 7.30pm Christmas Day;
(b)thereafter and until the commencement of term two 2011 - each alternate weekend from 9.30am Saturday till 4.30pm Sunday;
(c)thereafter:
(i)each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday, to commence the first weekend of each school term;
(ii)for the second half of each short New South Wales school holiday period and being from 4.30pm on the middle Saturday until 4.30pm on the last Sunday;
(iii)for one-half of the Christmas school holiday period in each year, being the first half in 2011, to commence 9.30am on the…

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 Udall and Oaks

Details

AGLC: Udall and Oaks [2010] FMCAfam 1482
Case: [2010] FMCAfam 1482
Decision Date: 22 October 2010

CaseChat Overview and Summary

Udall and Oaks involved a dispute between Ms Udall and Mr Oaks regarding the parenting arrangements for their son, [X]. The case was heard in the Family Court of Australia, which had jurisdiction over the matter as it concerned the welfare of a child and the making of parenting orders. The primary concern was determining the best living arrangements and contact schedule for [X], as well as the allocation of parental responsibilities between the parties.

The court had to decide several legal issues, including the allocation of shared parental responsibility, the primary residence of the child, and the specifics of the contact arrangements between [X] and his father. Additionally, the court addressed the need for family therapy and the parameters for communication between the parents and their son. The welfare and best interests of [X] were the paramount consideration throughout the proceedings.

The court found that it was in [X]'s best interests for both parents to have equal shared parental responsibility. It was determined that [X] should primarily reside with his mother, Ms Udall, but with a detailed schedule for spending time with his father, Mr Oaks. The contact arrangements were structured to ensure that [X] maintains a close relationship with both parents, including specific times during weekends, school terms, and holidays. The court also mandated family therapy and outlined strict communication guidelines to ensure a cooperative co-parenting relationship. Furthermore, the court issued injunctions to prevent the parents from interfering with each other's time with [X] and to prevent them from speaking negatively about one another in front of the child.

In summary, the court's orders discharged all existing parenting orders, allocated equal shared parental responsibility, set a primary residence for [X] with his mother, and established a detailed contact schedule with his father. The court also mandated family therapy, imposed communication restrictions, and set out specific guidelines for co-parenting and child welfare. These orders aimed to ensure that [X]'s best interests were met while maintaining a healthy relationship between both parents.

Orders

Orders of the court

All existing parenting orders with respect to the child, [X], shall be and are hereby discharged and specifically the interim airport watch-list order made 23 January 2009.

The parents of [X], namely, Ms Udall and Mr Oaks , shall have equal shared parental responsibility for [X].

[X] shall live with his mother, Ms Udall.

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

(a) until the commencement of term one 2011 - each alternate Saturday from 9.30am till 4.30pm commencing 6 November and, in addition, from 11am till 7.30pm Christmas Day;

(b) thereafter and until the commencement of term two 2011 - each alternate weekend from 9.30am Saturday till 4.30pm Sunday;

(i) each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday, to commence the first weekend of each school term;

(ii) for the second half of each short New South Wales school holiday period and being from 4.30pm on the middle Saturday until 4.30pm on the last Sunday;

(iii) for one-half of the Christmas school holiday period in each year, being the first half in 2011, to commence 9.30am on the first Saturday, conclude 4.30pm on the fourth Saturday, and each alternate year thereafter, and for the second half in 2012 to commence at 4.30pm on the fourth Saturday, conclude at 4.30pm on the last Sunday before school resumes and each alternate year thereafter;

(iv) such further and/or other times as agreed between the parents from time to time.

For the purpose of [X] passing between his parents changeovers shall occur:

(a) if a school day, by collecting from and/or returning to school;

(b) if not a school day, changeover is to occur at [omitted] Contact Service or, if that service is not available for the parties, in the foyer of [omitted].

Each of the parents is restrained and injuncted from attending at [X]’s school on any day when he is in the care of the other parent save:

(a) if required to attend for changeover; or

(b) if the parent is attending any special occasion at the school to which parents are invited or to participate in any activity at the school with the consent of both parents.

Each parent shall be entitled to communicate with [X] whilst not in their care by email and [X]’s parents shall, save in the case of emergency, also communicate with each other regarding [X]’s welfare by email.

Ms Udall and Mr Oaks are each restrained from denigrating the other or any member of the other’s household or extended family in the presence or hearing of [X] and nor shall they allow any other person to do so.

Ms Udall, Mr Oaks and [X] shall each forthwith attend upon their general practitioner to obtain a Medicare referral for them and [X] to attend family therapy with Ms V and for the purpose of obtaining therapy and assistance for themselves, and should Ms V consider it appropriate for [X], and:

(a) Ms Udall and Mr Oaks shall each attend and cause [X] to attend all and any appointments made with and to follow any referral made by Ms V:

(b) Ms Udall and Mr Oaks shall share equally any cost not covered by Medicare; and

(c) Family therapy provided by Ms V shall be considered to be family counselling pursuant to section 10B of the Family Law Act 1975 and all communications in such therapy shall be confidential and inadmissible pursuant to sections 10D and E, save for the purpose of mandatory notification of any allegation of abuse and for the purpose of advising this court in the event either party fails or refuses to attend or to continue to attend as directed; and

(d) the independent children’s lawyer is authorised and requested to forward to Ms V a copy of these orders, together with a copy of the reasons for judgment and Dr R’s report prepared in the proceedings.

10.

In the event that either party should desire to file any further application seeking parenting orders with respect to [X] or any contravention application such application is to be listed before me and not otherwise.

11.

Until 26 June 2016 there will be an airport watch-list order in the usual terms to expire at the age of 12.

12.

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

13.

Each parent is to immediately advise the other of any significant illness or hospitalisation and sufficient authority and information to enable each parent to discuss treatment with any doctor and to visit him if hospitalised.

14.

Each parent will do everything necessary to ensure that each parent’s contact details are recorded with any school or any other extracurricular activity in which he is attending and so each parent can obtain information or materials.

15.

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.

16.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

17.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these 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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