Wattel and Evans - [2010] FamCA 411

FAMILY COURT OF AUSTRALIA

WATTEL & EVANS

[2010] FamCA 411

FAMILY LAW – CHILDREN – Parental responsibility

Family Law Act 1975 (Cth)

AIF v AMS (1999) 199 CLR 160
Chappell and Chappell (2008) FLC 93-382

Harris v Caladine (1991) 172 CLR 84
Lansa & Clovelly [2010] FamCA 80
MRR v GR (2010) 263 ALR 368

U v U (2002) 211 CLR 238

APPLICANT:

Mr Wattel

RESPONDENT:

Ms Evans

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

4793

2008

DATE DELIVERED:

12 May 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

12 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr M.W. Sayers

SOLICITOR FOR THE APPLICANT:

N R Barbi Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Tulloch

SOLICITOR FOR THE RESPONDENT:

Watts McCray McGuinness Eley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr G. Andrews

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid Queensland

Orders

IT IS ORDERED BY CONSENT THAT

Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Independent Children’s Lawyer be discharged.
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.

IT IS DIRECTED THAT

The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT:

That all extant orders be discharged.
That the child [T] born […] August 2002 live with the mother.
That the child spend time with the father as follows:
3.1.Commencing on Friday, 14 May 2010, on each alternate weekend during school terms from the conclusion of school on Friday until the commencement of school on Monday or Tuesday if Monday is a public holiday or pupil free day. (The said regime of weekends shall recommence on the first weekend of each new school term);
3.2.For one half of the school term holidays as follows:
3.2.1.In even numbered years from the end of school on the last day of each term until 10am on the second Saturday (being the middle weekend) of the said holidays; and
3.2.2.In odd numbered years from 10 am on the second Saturday (being the middle weekend) until the start of school at the beginning of the next term;
3.3.For one half of the Christmas school holidays as follows:
3.3.1.From the last day if term 4 until 10am on 5 January during…

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 Wattel and Evans

Details

AGLC: Wattel and Evans [2010] FamCA 411
Case: [2010] FamCA 411
Decision Date: 12 May 2010

CaseChat Overview and Summary

The parties in this matter were Wattel and Evans, with Murphy J presiding in the Family Court of Australia. The dispute concerned parenting arrangements for a child, T, born in August 2002. The proceedings concluded by consent, with the court making orders reflecting the agreement reached between the parties.

The court was required to determine the specific terms of parenting orders concerning the child's residence, time spent with each parent, and various ancillary matters. These included provisions for changeovers, restrictions on the father's ability to issue further proceedings or contact certain agencies, and restraints on the father's contact with the mother and other individuals. The orders also addressed the child's education, medical care, and communication between the parents.

Murphy J made orders by consent, discharging all extant orders and establishing that the child would live with the mother. The father was granted specific time with the child during school terms and holidays, with detailed provisions for changeovers. Crucially, the father was restrained from issuing further proceedings concerning the child for a period and from contacting certain agencies. He was also restrained from contacting the mother, R Evans, or his family, and from allowing the child to contact PW. The orders further stipulated arrangements for the child's schooling and medical care, and outlined communication protocols between the parents, including limitations on email correspondence. The Independent Children's Lawyer was discharged and authorised to serve copies of the orders on relevant authorities.

Orders

Orders of the court

IT IS ORDERED BY CONSENT THAT

Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

The Independent Children’s Lawyer be discharged.

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.

IT IS DIRECTED THAT

The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT:

That all extant orders be discharged.

That the child [T] born […] August 2002 live with the mother.

That the child spend time with the father as follows:

3.1. Commencing on Friday, 14 May 2010, on each alternate weekend during school terms from the conclusion of school on Friday until the commencement of school on Monday or Tuesday if Monday is a public holiday or pupil free day. (The said regime of weekends shall recommence on the first weekend of each new school term);

3.2. For one half of the school term holidays as follows:

3.2.1. In even numbered years from the end of school on the last day of each term until 10am on the second Saturday (being the middle weekend) of the said holidays; and

3.2.2. In odd numbered years from 10 am on the second Saturday (being the middle weekend) until the start of school at the beginning of the next term;

3.3. For one half of the Christmas school holidays as follows:

3.3.1. From the last day if term 4 until 10am on 5 January during the 2010/2011 holidays and in each alternate year thereafter; and

3.3.2. From 10am on 5 January until the start of school on the first day of term 1 during the 2011/2012 holidays and in each alternate year thereafter.

All changeovers that do no take place at the child’s school shall take place at the McDonald’s Restaurant at [L] and for such purposes each party may personally attend or have the child collected by a person to be nominated by them (save that the mother shall not nominate [R Evans]).

That until 1 March 2014, save with the prior leave of the Court, the father shall be and is hereby restrained from:

5.1. Issuing any further proceedings in any court with respect to the child under the Family Law Act 1975 (Cth);

5.2. Notifying the Department of Child Safety; Queensland Police Service (or equivalent government agency in any State or Territory of Australia) or any other government or private welfare agency with respect to the child;

and in the event that leave is sought by the father any application for leave shall be issued in the Brisbane Registry of this Court.

That until further order the father by himself and by his servants and agents shall be and is hereby restrained from:

6.1. Contacting the mother, save as otherwise provided by these orders;

6.2. Contacting [R Evans] or his family;

6.3. Disseminating or discussing any documents or other information arising from any Family Law Act proceedings involving [R Evans];

6.4. Permitting the child to come in to contact, including via telephone, with [PW].

That each parent shall do all such acts and things and sign all such documents as may be required to:

7.1. Have the child complete her primary school education at [L] State College; and

7.2. Ensure that each party shall be entitled to receive from the said school all newsletters, notices and other information provided to parents, and this order shall serve as such authority.

That each parent shall ensure that the child’s general medical practitioner shall be part of the practice known as [C Practice] or [L Practice].

Save in the event of a medical emergency that occurs during a period of time when the child is in the father’s care, the mother shall be the parent responsible for the child’s medical and dental care and the mother shall provide the father within 14 days the name and contact details of any doctor, dentist or treating professional attended by the child and this order shall authorise the said treating professional to provide any information about the child to the father.

10.

In the event of a medical emergency that occurs in the care of either parent they shall each notify the other of the said emergency and the name and contact details of the child’s treating professionals as soon as practicable.

11.

Each parent shall keep the other informed at all times of the current email address and further a telephone number (the telephone number being for use only in the event of an emergency).

12.

Each parent shall be at liberty to contact the other parent via email about any issue relevant to the child provided that neither of them shall send more than one email in any two week period.

13.

That the Independent Children’s Lawyer be at liberty to serve a copy of these orders upon Court Services of the Department of Communities (child Safety), The Queensland Commissioner of Police and the principal of [L] State College and to the extent that it may be necessary the Independent Children’s Lawyer shall be relieved of any obligation placed upon her by section 1212 of the Family Law Act.

14.

That the Independent Children’s Lawyer shall arrange for [Ms Y] to explain these orders to the child and the mother shall make the child available for that purpose.

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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