WADDELL & WHITTON - [2013] FMCAfam 253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WADDELL & WHITTON [2013] FMCAfam 253

FAMILY LAW – Parenting – young child – acrimonious parenting relationship – intransigence and lack of insight on part of Father – Father seeks that Court make orders in relation to any ‘yet to be born children’ of a later relationship – best interest considerations of child of the relationship.

Family Law Act1975 (Cth) ss.60B, 60B(2)(a) & (b), 60CA, 60CC(2), 60CC(3)(a), (b), (c), (d), (f), (g), (i), (j), (k) 61DA, 65DAA

Collu & Rinaldo [2010] FamCAFC 53
Goode v Goode (2007) 36 Fam LR 422
Keach & Keach (2007) FLC ¶93-353
McCall v Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439

Applicant: MR WADDELL

Respondent: MS WHITTON

File Number: CAC 684 of 2010

Judgment of: Neville FM

Hearing dates: 31 May, 1 June & 10 October 2012

Date of Last Submission: 10 October 2012 & 11 March 2013

Delivered at: Canberra

Delivered on: 22 March 2013
REPRESENTATION

Counsel for the Applicant: Self represented

Counsel for the Respondent: Ms J Godtschalk

Solicitors for the Respondent: Legal Aid, NSW

Counsel for the Independent Children’s Lawyer M G Blank

Solicitors for the Independent Children’s Lawyer Rama Myers, Family Lawyers, Wodonga, Vic
ORDERS
(1)That all previous in relation to parenting be discharged.
(2)The child live with the Mother.
(3)That the Mother have sole parental responsibility for the child subject to the following:
(a)except in the case of an emergency, the Mother shall prior to implementing a decision about the child’s long term care, welfare or development write to the Father via the Communication Book:
(i)advising the Father of her proposal and inviting his response allowing at least 14 days before a decision has to be made;

(ii) if the Father offers a response, consider it;
(iii) notify the Father of her decision.

(4)That the Father have all parental responsibility as is necessary for any health or educational professional or institution dealing with the child, including but not limited to doctors and schools/pre-schools to provide him with any information about the child to which a parent is normally entitled, including but not limited to medical reports, school reports, school photographs and the like.
(5)In the absence of agreement in writing, the child is to be known and registered as [X] Waddell Whitton.
(6)That the Father spend time with the child until she commences primary school each alternate weekend from 4.00pm Friday until 4.00 pm Sunday, commencing 26 April 2013.
(7)Prior to the child commencing school, in all even-numbered years the child shall:
(a)be in the Father’s care from 10am Boxing Day until 5pm on 27 December;
(b)be in the Mother’s care from 10am Christmas Eve until 10am Boxing Day.

(8)Prior to the child commencing school, in all odd-numbered years the child shall:
(a)be in the Father’s care from…

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 WADDELL & WHITTON

Details

AGLC: WADDELL & WHITTON [2013] FMCAfam 253
Case: [2013] FMCAfam 253
Decision Date: 22 March 2013

CaseChat Overview and Summary

The matter in the Family Court of Australia, [2013] FCCA 635, involved the parents, Waddell and Whitton, and their child [X]. The primary dispute centred on the arrangements for parenting and contact following the parents' separation. The court was tasked with determining the most appropriate living arrangements for the child, considering the welfare and best interests of [X].

The legal issues before the court included the allocation of parental responsibility, the determination of living arrangements, and the establishment of contact and communication protocols between the parents. The court had to balance the parents' rights and responsibilities with the child's best interests, ensuring that [X] had a stable and nurturing environment. The court also had to consider the specific needs and preferences of [X], as well as the ability of each parent to provide for those needs.

The court's reasoning involved a detailed examination of the evidence presented by both parents, including their respective capabilities, lifestyle, and the child’s needs. The court found that the mother should have sole parental responsibility but was required to consult with the father on significant decisions affecting the child’s long-term care, welfare, or development. The father was granted extensive visitation rights, carefully scheduled to ensure [X] maintained a meaningful relationship with both parents. The detailed contact arrangements were designed to provide stability and predictability for [X] while accommodating the parents' commitments.

The final orders included the discharge of previous orders, granting sole parental responsibility to the mother, and establishing a comprehensive schedule for the father’s visitation rights. The orders also included provisions for communication, medical notifications, and the use of a communication book to ensure ongoing information exchange between the parents. Restrictions were placed on the parents to prevent any negative influence on the child and to maintain a respectful and cooperative co-parenting relationship.

Orders

Orders of the court

(1) That all previous in relation to parenting be discharged.

(2) The child live with the Mother.

(3) That the Mother have sole parental responsibility for the child subject to the following:

(a) except in the case of an emergency, the Mother shall prior to implementing a decision about the child’s long term care, welfare or development write to the Father via the Communication Book:

(i) advising the Father of her proposal and inviting his response allowing at least 14 days before a decision has to be made;

(ii) if the Father offers a response, consider it;

(iii) notify the Father of her decision.

(4) That the Father have all parental responsibility as is necessary for any health or educational professional or institution dealing with the child, including but not limited to doctors and schools/pre-schools to provide him with any information about the child to which a parent is normally entitled, including but not limited to medical reports, school reports, school photographs and the like.

(5) In the absence of agreement in writing, the child is to be known and registered as [X] Waddell Whitton.

(6) That the Father spend time with the child until she commences primary school each alternate weekend from 4.00pm Friday until 4.00 pm Sunday, commencing 26 April 2013.

(7) Prior to the child commencing school, in all even-numbered years the child shall:

(a) be in the Father’s care from 10am Boxing Day until 5pm on 27 December;

(b) be in the Mother’s care from 10am Christmas Eve until 10am Boxing Day.

(8) Prior to the child commencing school, in all odd-numbered years the child shall:

(a) be in the Father’s care from 10am Christmas Eve until 10am Boxing Day;

(b) be in the Mother’s care from 10am Boxing Day until 5pm on 27 December.

(9) Upon the child commencing her first year of primary school, the Father spend time with the child as follows:

(a) during school terms, every second weekend from the conclusion of school on Friday until 5pm Sunday and in the event that the Father’s time falls on a long weekend including a Monday or Friday the time shall be extended until 5pm on the extra day;

(b) during each of the short school holiday periods for 4 consecutive days, at times as agreed between the parties and failing agreement, from 5pm on the second Saturday of the school holidays until 5pm on the Wednesday immediately following;

(c) for 2 one week periods in the Christmas School holidays at the end of the first year of the child’s primary schooling at such times to be agreed between the parties and failing agreement, from 5pm on the first Saturday of the holidays until 5pm on the second Saturday of the holidays and from 5pm on the fourth Saturday of the holidays until 5pm on the fifth Saturday of the holidays.

(d) At Christmas time as follows:

(i) in even-numbered years from 10am Boxing Day until 5pm on 27 December;

(ii) in odd-numbered years from 10am Christmas Eve until 10am Boxing Day.

(iii) at any other times as the parties may agree upon.

(10) In the second year of the child’s schooling and each year thereafter until the child commences secondary school, the Father spend time with the child as follows:

(b) for one half of the first, second and third term short school holidays, such half to be agreed between the parties and in absence of agreement the first half in even numbered years and the second half in odd numbered years.

(i) in even-numbered years, from 10am Boxing Day until 10am on 2 January;

(ii) in odd-numbered years, from 10am Christmas Eve until 10am Boxing Day.

(d) for one half of the Christmas school holiday period at times as agreed between the parties and failing agreement as follows:

(i) in even-numbered years:

I. from 10am Boxing Day until 10am on 2 January;

II. from 10am 12 January until 10am 22 January;

(ii) In odd-numbered years:

I. from 10am 2 January until 10am 12 January;

II. from 10am 22 January until 10am 29 January;

(e) At any other times as the parties may agree upon.

(11) Upon the child commencing secondary school, the child spend time with the Father as follows:

(a) from the conclusion of school on Friday until 5pm Sunday every third weekend and in the event that the Father’s time falls on a long weekend including Monday or Friday the time shall be extended until 5pm on the extra day;

(b) in the school holidays as provided for in paragraphs 9(b)-(e) herein.

(12) That notwithstanding any other provision in these orders, upon the child commencing school, she is to be in the Mother’s care at Christmas time as follows:

(a) in all even-numbered years from 10am Christmas Eve until the Father’s time pursuant to paragraphs 8(d) or 9(c) commences;

(b) in all odd-numbered years, from 10am Boxing Day until the Father’s time pursuant to paragraph 8(c) or 9(d) herein commences

(13) That notwithstanding any other provision in these orders, the child shall:

(a) in all even-numbered years be in the Mother’s care from 4pm Easter Thursday until 4pm Good Friday and in the Father’s care from 4pm Good Friday until 4pm Easter Monday;

(b) in all odd-numbered years be in the Father’s care from 4pm Easter Thursday until 4pm Good Friday and in the Mother’s care from 4pm Good Friday until 4pm Easter Monday;

(14) That in the event Easter falls within the school holidays then the time that the Father is due to spend with the child pursuant to paragraph 12 herein shall be included when calculating the time the Father is to have the child in his care for the holidays pursuant to paragraphs 8(b) and 9(b) herein.

(15) That if Mother’s Day falls on a weekend when the child would be in the Father’s care, the Father’s time with the child be suspended on the Mother’s Day weekend so that the child can be in the Mother’s care and the Father shall spend time with the child the following weekend in lieu of the Mother’s Day weekend.

(16) That if Father’s Day falls on a weekend when the child would be in the Mother’s care, the Mother’s time with the child be suspended on the Father’s Day weekend so that the child can be in the Father’s care and the Mother shall spend time with the child the following weekend in lieu of the Father’s Day weekend.

(17) If the child's birthday occurs when the child is not in the Father's care, for not less than 2 hours and such time to be spent in the [C] area.

(18) That each party be at liberty to attend any events at the child's school or preschool that parents are ordinarily invited to attend.

(19) That changeover shall take place at [C] police station and once the child begins school, at school on school days and at the [C] police station on non-school days.

(20) That in the event the Child Support Assessment payable by the Father in respect of the child reaches or exceeds $150.00 per week (the amount assessed as payable to be indexed by 5% on the 1 January 2013 and each year thereafter), the mother shall share in the transport of the child at times of the overnight visits between the child and the Father and in the absence of agreement, the Mother shall deliver the child to [W] police station at the commencement of the visits and the Father shall return the child to [C] police station at the conclusion of the visit.

(21) That in the event the Father is unable to do the handover his current wife Mrs W shall do the handover of the child and in the event the Mother is unable to do the handover a maternal grandparent will do the handover of the child.

(22) That in the event the Father is more than fifteen minutes late returning the child to the Mother at the conclusion of a visit, the next scheduled visit between the child and the Father pursuant to these orders shall be cancelled.

(23) That the parties shall speak to the child by telephone as follows:

(a) upon the child commencing school, telephone calls with the Father between 6:30pm and 7:00pm on each Tuesday and each Sunday when the child has not otherwise spent time with the Father, with the Father to initiate the calls and the Mother to facilitate and have the child available to speak with the Father.

(b) when the child is spending three nights or more with the Father in accordance with these Orders, telephone calls with the Mother as agreed and failing agreement, every second day between 6:30pm and 7:00pm, with the Mother to initiate the calls and the Father to facilitate and have the child available to speak with the Mother.

(c) telephone calls on the child’s birthday, Easter Sunday and Christmas Day with the parent who does not have the care of the child at such times as agreed between the parties and failing agreement between 9.00am and 10.00am;

(d) on each of the parties birthdays between 6.30pm and 7.30pm;

(e) telephone calls at any other times as agreed between the parties;

(24) In relation to medical issues, each party shall:

(a) notify the other in writing (writing including e-mailing, texting or use of the communication book) of:

(b) any illness or injury that the child suffers which requires the child to be admitted to hospital and/or to miss three or more consecutive days of school, such notice to be provided as soon as possible and to include the name of the hospital the child attends and the diagnosis of the illness/injury the child suffers;

(c) any specialist medical appointment made for the child with any paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist within 24 hours of the appointment being made and such notice to include the name of the referring doctor and the reason for the specialist appointment;

(d) authorise any doctor or specialist medical practitioner that the child visits to provide the other party with any information requested by them in relation to the child, including any medical reports.

(25) That except in the case of a medical emergency, both parties are to communicate with each other by SMS message or email and such communication is to be polite, courteous and respectful.

(26) That the parties shall exchange a Communication Book at changeovers and the parties shall use the book to record matters relevant to the child’s care, those matters being detailed in Attachment “A” provided by the Parenting Orders Program.

(27) That the Father and Mother be and are hereby restrained from denigrating the other or the extended family of the other in the presence of the child and the Father and Mother are to use their best endeavours to ensure that no other person denigrates either parent in the presence of the child.

(28) That the Father be and is hereby restrained from alleging the Mother has a mental health issue or discussing such issue in the hearing or presence of the child.

(29) That Mother shall ensure that the Father’s name and contact details are included on any enrolment form completed for the child at any school or pre-school the child may attend.

(30) That each party is authorised to obtain from any school or pre-school that the child may attend copies of all school reports, school newsletters and school photographs.

(31) That the parties shall attend the Parenting Orders Program at [omitted] Family Care in Albury and shall utilise the program to attempt to resolve any disputes that may arise in relation to the child.

AND IT IS NOTED THAT:

A. That the child support currently paid by the Father for the child averages approximately $17.67 per week.

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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