FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wadhams & Racine [2024] FedCFamC2F 221
File number(s): MLC 5511 of 2021 Judgment of: JUDGE GLASS Date of judgment: 2 February 2024 Catchwords: FAMILY LAW – PARENTING – ex tempore reasons given following the mother's failure to return after luncheon adjournment – whether four year old child who has been living week about between her two parents in different parts of Victoria should live primarily with her father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 69ZN, 102NA(1)(c)(iv)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04, 10.27
Cases cited: Boyle & Zahur & Anor (2017) FLC 93-814
Groth & Banks [2013] FamCA 430
Lennon & Lennon [2011] FamCA 571
Division: Division 2 Family Law Number of paragraphs: 69 Date of hearing: 1-2 February 2024 Place: Melbourne Counsel for the Applicant: Mr Goussis Solicitor for the Applicant: CMA Law Counsel for the Respondent: Self Represented Litigant ORDERS
MLC 5511 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WADHAMS
Applicant
AND: MS RACINE
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Father have sole parental responsibility for X, born in 2019.
2.X live with the Father.
3.X spend time with the Mother each alternate weekend from 12:00pm on Saturday to 12:00pm on Sunday, with such time to commence on Saturday 17 February 2024.
4.Notwithstanding any Order to contrary, X is to spend time with and communicate with each parent as follows:
(a)For Christmas as agreed between the parents in writing and failing agreement as follows:
(i)With the Mother from 5.00 pm Christmas Eve to 12.00 pm Boxing Day in 2025 and each alternate year thereafter.
(ii)With the Father from 5.00 pm Christmas Eve to 12.00 pm Boxing Day in 2024 and each alternate year thereafter.
(b)For Mother's Day and Father's Day as agreed between the parents in writing and failing agreement:
(i)With the Mother from 5.00 pm on the day preceding Mother's Day until 2.00 pm on Mother's Day.
(ii)With the Father from 5.00 pm on the day preceding Father's Day until 2.00 pm on Father's Day.
5.Unless otherwise agreed between the parties in writing, changeover occur at the City C Police Station (D Street, City C).
6.The Mother sign all documents and do all acts as required to apply for an Australian passport for X within seven days of receiving a written request from the Father.
7.In the event the Mother fails or refuses to comply with Order 6 hereof, pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth) the Father is authorised and permitted to apply for, renew and receive Australian passports for the child X born in 2019 and the child be permitted to travel internationally, without first obtaining the written consent of the Mother.
8.In the event that the Father proposes to travel internationally with the child, he provides to the Mother in…
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CaseChat Overview and Summary
The court considered the best interests of the child as the paramount concern, taking into account the child's current living arrangements, the parents' ability to provide for the child's needs, and the impact of any proposed changes on the child. The court also considered the mother's failure to return after the adjournment, which the court found to be significant in the context of the child's best interests. Given the child's age and the current arrangements, the court found that the father was better placed to provide for the child's primary care. The court also considered the parents' ability to communicate and cooperate in relation to the child's care and made orders to facilitate this.
The court ordered that the father have sole parental responsibility for the child and that the child live with the father. The court also made orders for the child to spend time with the mother on alternate weekends and for the parents to communicate and cooperate in relation to the child's care. The court also made orders in relation to the child's travel and passport arrangements, as well as the parents' provision of information to each other. The court dismissed all other applications. The form of the order is subject to the entry in the Court's records, and this copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.
Orders
Orders of the court
MLC 5511 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR WADHAMS
Applicant
AND:
MS RACINE
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1. The Father have sole parental responsibility for X, born in 2019.
2. X live with the Father.
3. X spend time with the Mother each alternate weekend from 12:00pm on Saturday to 12:00pm on Sunday, with such time to commence on Saturday 17 February 2024.
4. Notwithstanding any Order to contrary, X is to spend time with and communicate with each parent as follows:
(a) For Christmas as agreed between the parents in writing and failing agreement as follows:
(i) With the Mother from 5.00 pm Christmas Eve to 12.00 pm Boxing Day in 2025 and each alternate year thereafter.
(ii) With the Father from 5.00 pm Christmas Eve to 12.00 pm Boxing Day in 2024 and each alternate year thereafter.
(b) For Mother's Day and Father's Day as agreed between the parents in writing and failing agreement:
(i) With the Mother from 5.00 pm on the day preceding Mother's Day until 2.00 pm on Mother's Day.
(ii) With the Father from 5.00 pm on the day preceding Father's Day until 2.00 pm on Father's Day.
5. Unless otherwise agreed between the parties in writing, changeover occur at the City C Police Station (D Street, City C).
6. The Mother sign all documents and do all acts as required to apply for an Australian passport for X within seven days of receiving a written request from the Father.
7. In the event the Mother fails or refuses to comply with Order 6 hereof, pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth) the Father is authorised and permitted to apply for, renew and receive Australian passports for the child X born in 2019 and the child be permitted to travel internationally, without first obtaining the written consent of the Mother.
8. In the event that the Father proposes to travel internationally with the child, he provides to the Mother in writing:
(a) 60 days' notice of the intended travel dates;
(b) copy of the itinerary; and
(c) contact details for the children.
9. The Father be permitted to hold the child’s passport.
10. The Father provides the Mother with information in relation to the child’s ongoing health and education.
11. The parent’s keep each other informed of their residential address, telephone number and email address and notify each other of any change within twenty-four hours of such change.
12. Unless an objection is received by the Associate to Judge Glass by email, copying in the Father’s legal representative, by 5.00pm on Monday 5 February 2024, the Father have leave to use the Family Report of Dr B dated 18 September 2023 in the Family Violence Intervention Order proceedings between the parties in the Magistrates’ Court of Victoria.
13. All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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