WADDELL & MADDEN

Case [2011] FMCAfam 1533

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WADDELL & MADDEN [2011] FMCAfam 1533
FAMILY LAW – Interim parenting application – child’s geographical place of residence – time spent with father.
Family Law Act 1975, ss.4, 10J, 13C, 60B, 60CA, 60CC, 60I, 61DA, 63C, 65DAA, 65DAB, 65DAC, 65F, 68B, 69ZN, 69ZT
Goode & Goode (2006) FLCA 93-286
Marvel & Marvel [2010] FamCAFC 101
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker [2007] FamCA 1246
Sealey & Archer [2008] FamCAFC 142
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
U & U [2002] HCA 36
Pitken & Hendry [2008] FamCA 186
MRR & GR[2010] HCA 4
Dylan & Dylan [2007] FamCA 842
Applicant: MR WADDELL
Respondent: MS MADDEN
File Number: PAC 4155 of 2011
Judgment of: Harman FM
Hearing date: 15 December 2011
Date of Last Submission: 15 December 2011
Delivered at: Parramatta
Delivered on: 15 December 2011

REPRESENTATION

Solicitors for the Applicant: Mason Mia & Associates
Solicitors for the Respondent: Kenny Spring Solicitors

ORDERS

  1. Make orders in accordance with orders (1), (3), (4), (5), (7) to (10) inclusive and (12) to (20) inclusive, of the orders sought by the father in his application in the case of 1 November 2011.

  2. No later than three days prior to X’s first scheduled day of school attendance, the respondent mother is to ensure that X’s place of residence is established within the (omitted) Council area.

  3. In addition to periods of time that X is to spend with each of her parents, pursuant to the above orders:

    (a)X shall, at all times when not spending time with, and in the care of, her father, spend time with her mother; and

    (b)Commencing with the school holidays at the conclusion of term 1, 2012, each parent shall have X in their care, and spend time with her, for one half of that holiday period, and absent agreement to the contrary, X shall spend time with her father from 3pm Friday until 3pm the following Friday and in accordance with the order for week about time, made herein.

  4. For the purpose of X passing into her father’s care, he shall collect her from school, if a school attendance day, and otherwise from the mother’s home.

  5. For the purpose of X passing into her mother’s care, she shall collect her from her school, if a school day, and otherwise from the father’s home.

  6. Pursuant to s. 13C of the Family Law Act 1975, and in the event that there is no agreement between the parents by 23 December 2011 as to the school X will attend, commencing 2012, each of the parents is to do all things within their power to then forthwith arrange, and if possible, attend Family Dispute Resolution as soon as practicable, and ideally, before the commencement of term 1 2012, to discuss and attempt to resolve and reach agreement regarding that issue.

IT IS…

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AGLC
WADDELL & MADDEN [2011] FMCAfam 1533
Case
[2011] FMCAfam 1533
Decision Date

CaseChat Overview and Summary

The case involves the application by the father for parenting orders concerning his child, X. The mother, as the respondent, contested the father's application, leading to the court needing to decide on various aspects of X's upbringing. The central issue was the admissibility of a document outlining an agreement between the parents, which was prepared with the assistance of a Family Dispute Resolution Practitioner. The court had to determine whether this document could be considered, given the statutory exclusions under s. 10J of the Family Law Act 1975 and s. 131 of the Evidence Act 1994, both of which render certain communications and negotiations inadmissible in court. Additionally, the court had to consider whether the document should be treated as a parenting plan, potentially requiring regard under s. 65DAB and s. 65DAC of the Family Law Act 1975.

The court ruled that the document in question was inadmissible under both s. 10J of the Family Law Act 1975 and s. 131 of the Evidence Act 1994, as it contained communications made in the presence of a Family Dispute Resolution Practitioner and negotiations between the parties. The court explicitly stated that it would not consider the document in making its decision, highlighting the mandatory nature of these statutory exclusions. Furthermore, the court found that the document was not a parenting plan, and thus sections 65DAB and 65DAC did not apply. The court's reasoning was based on the strict interpretation of the relevant statutes, ensuring compliance with legislative mandates regarding the admissibility of evidence in family law proceedings.

The court made several orders concerning X's care and education, including establishing her place of residence within a specified council area, outlining the schedule for time spent with each parent, and detailing the arrangements for school and holiday periods. The court also mandated that the parents attempt to reach an agreement on X's schooling by a specified date, with a requirement to engage in Family Dispute Resolution if necessary. This decision underscores the court's focus on the best interests of the child while adhering to statutory frameworks governing evidence and parenting orders.

Orders

Orders of the court

1.

Make orders in accordance with orders (1), (3), (4), (5), (7) to (10) inclusive and (12) to (20) inclusive, of the orders sought by the father in his application in the case of 1 November 2011.

2.

No later than three days prior to X’s first scheduled day of school attendance, the respondent mother is to ensure that X’s place of residence is established within the (omitted) Council area.

3.

In addition to periods of time that X is to spend with each of her parents, pursuant to the above orders:

(a) X shall, at all times when not spending time with, and in the care of, her father, spend time with her mother; and

(b) Commencing with the school holidays at the conclusion of term 1, 2012, each parent shall have X in their care, and spend time with her, for one half of that holiday period, and absent agreement to the contrary, X shall spend time with her father from 3pm Friday until 3pm the following Friday and in accordance with the order for week about time, made herein.

4.

For the purpose of X passing into her father’s care, he shall collect her from school, if a school attendance day, and otherwise from the mother’s home.

5.

For the purpose of X passing into her mother’s care, she shall collect her from her school, if a school day, and otherwise from the father’s home.

6.

Pursuant to s. 13C of the Family Law Act 1975, and in the event that there is no agreement between the parents by 23 December 2011 as to the school X will attend, commencing 2012, each of the parents is to do all things within their power to then forthwith arrange, and if possible, attend Family Dispute Resolution as soon as practicable, and ideally, before the commencement of term 1 2012, to discuss and attempt to resolve and reach agreement regarding that issue.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with s.10J of the Family Law Act1975 evidence of communications in the presence of Family Dispute Resolution Practitioners which occur in Family Dispute Resolution or to persons to whom parties are referred by a family dispute resolution practitioner are inadmissible. Exceptions exist only as to admissions and disclosures of abuse. That provision is in the following terms:“Evidence of anything said, or any admission made by, or in the company of:(a) a family dispute resolution practitioner conducting family dispute resolution; or(b) a person (the professional) to whom the family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for that person, is not admissible;(c) in any Court, whether or not exercising Federal jurisdiction; or(d) in any proceedings before a person authorised to hear evidence. (emphasis added)” Section 131 of the Evidence Act 1994 also excludes and renders inadmissible, (subject to a number of exceptions as enumerated in that section), evidence of negotiations between parties. On the basis of either s.10J of the Act or s.131 of the Evidence Act, the document that has been prepared could not be admissible in any Court for any purpose. The document clearly seeks to set out an agreement that was apparently negotiated between parents with the assistance of, and in the company of, a Family Dispute Resolution Practitioner, and accordingly must, by necessity, contain and be a record of evidence of anything said in the company of a Family Dispute Resolution Practitioner. On that basis, and as I have indicated, I have not considered or had any reference to the document and, indeed, it will be struck out as part of the evidence presently before the Court as it should not be here. That is not intended as some castigation or overt criticism of the legal practitioners for the parties but simply a reflection of the mandatory nature of the exclusion of that evidence, specifically under section 10J, but also by reference to s. 131 of the Evidence Act. I have also been urged by the parties, through their material and in submissions, to have some regard to the “parenting plan”. Indeed, if it were a parenting plan, s. 65DAB mandates such consideration. Section 65DAB is in the following terms:“When making a parenting order in relation to a child, the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child.” The document that is before me is not a parenting plan and, accordingly, s. 65DAB is not enlivened. Similarly, reference has been made to s. 65DAC, detailing the effect of a parenting order that provides for equal shared parental responsibility. These submission appear to be on the basis that equal shared parental responsibility is referred to and touched upon within the document referred to as a parenting plan, but to which I have not had regard. Section 65DAC would not apply even if the offending document were a parenting plan as the plan does not contain nor create parenting orders.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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