Wheden and Wheden - [2010] FMCAfam 1107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHEDEN & WHEDEN

[2010] FMCAfam 1107

FAMILY LAW – Parenting – relocation.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61DA, 65DAA, 62G.
Evidence Act 1995, s.80

Andrew & Delaine [2009] FamCAFC 182 (unreported)
BBT & JMT (1980) FLC 90-809
D & P [2006] FamCA 170 (unreported)
Friscioni & Friscioni [2010] FamCAFC 108
Hall & Hall (1979) FLC 90-713
Harris & Harris (1977) FLC 90-276
M & M (1978) FLC 90-429
Re JRL; ex parte CJL [1986] HCA 39
Wood (1976) FLC 90-098
“Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia” (1977) 30 Australian Social Work 1

Applicant:

MR WHEDEN

Respondent:

MS WHEDEN

File Number:

SYC 839 of 2010

Judgment of:

Altobelli FM

Hearing dates:

24-25 June, 6 July, 19 August 2010

Date of Last Submission:

19 August 2010

Delivered at:

Sydney

Delivered on:

5 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr Kenny

Solicitors for the Applicant:

Campbell, Paton & Taylor

Counsel for the Respondent:

Mr Dura

Solicitors for the Respondent:

Swaab Attorneys

ORDERS

That the children [X] born [in] 1999 and [Y] born [in] 2004 (the children) live with the father.
That the parties have equal shared parental responsibility for the children.
That the children spend time and communicate with the mother as follows:-
(a)In the event that the mother lives within 50 kilometres from the township of [W]:
(i)Each alternate week from Friday after school to the following Friday before school;
(ii)For the first half of NSW school holiday periods commencing10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;
(iii)For the second half of NSW school holiday period commencing 10.00am on the midpoint day of the school holiday period to 5.00pm on the Saturday prior to the commencement of the new school term in even numbered years;
(iv)Mother’s day weekend from Friday after school to Sunday 5.00pm;
(v)Shared children’s birthday.
(b)In the event that the mother lives more than 50 kilometres but less than 200 kilometres from the township of [W]:
(i)Each alternate weekend from Friday after school to Sunday 5.00pm or Monday 5.00pm if Monday is a public holiday;
(ii)For the first half of NSW school holiday periods commencing 10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;
(iii)For the second half of NSW school holiday period commencing 10.00am on the midpoint day of the school holiday period to 5.00pm on the Saturday prior to the commencement of the new school term in even numbered years;
(iv)Mother’s day weekend from Friday after school to Sunday 5.00pm;
(v)Shared children’s birthday;
(vi)If the mother lives within 100 kilometres of the children’s school, the contact referred to in (i) above will conclude with the mother taking the children to school on the Monday morning, or Tuesday if Monday is a public holiday.
(c)In the event that the mother lives…

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 Wheden and Wheden

Details

AGLC: Wheden and Wheden [2010] FMCAfam 1107
Case: [2010] FMCAfam 1107
Decision Date: 5 November 2010

CaseChat Overview and Summary

In the matter of Wheden and Wheden, the court was tasked with determining parenting arrangements for the two minor children, [X] born in 1999 and [Y] born in 2004. The primary concern was the allocation of care and contact time between the parents, [M] and [F], who had been in a de facto relationship until their separation. The court was required to balance the welfare and best interests of the children against the respective wishes and needs of both parents.

The central legal issue before the court was the formulation of a parenting plan that would ensure the children's stability, continuity, and emotional well-being, while also allowing for meaningful and regular contact with both parents. The court had to consider the specific circumstances of each parent, including their respective living arrangements and capabilities to provide for the children's needs. The court's decision was guided by principles set out in the Family Law Act 1975, which emphasise the paramountcy of the children's best interests and the importance of both parents having a meaningful role in their lives.

The court decided that the children would live primarily with the father, while both parents would share equal responsibility for major long-term issues. The court detailed specific contact arrangements for the children to spend time with the mother, varying based on her distance from the children's primary residence. The contact was structured to ensure stability and reduce the potential for confusion and disruption in the children's lives. The court also imposed restrictions on contact during certain periods, such as the father's weekend, and during school holidays when the mother was to have the first half. The court mandated that the children have liberal telephone communication with the mother and that both parents refrain from making disparaging remarks about each other in the children's presence. Additionally, the court required the parents to notify each other of any medical issues affecting the children and authorised the children's school to share information relevant to the parents.

The court's final orders included provisions for the children's primary residence with the father, detailed contact schedules with the mother, restrictions on contact during specific periods, communication protocols, and restrictions on the parents' conduct in relation to each other and the children. The orders were designed to ensure that the children maintain a stable and nurturing environment while allowing for meaningful and regular interaction with both parents.

Orders

Orders of the court

That the children [X] born [in] 1999 and [Y] born [in] 2004 (the children) live with the father.

That the parties have equal shared parental responsibility for the children.

That the children spend time and communicate with the mother as follows:-

(a) In the event that the mother lives within 50 kilometres from the township of [W]:

(i) Each alternate week from Friday after school to the following Friday before school;

(ii) For the first half of NSW school holiday periods commencing10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;

(iii) For the second half of NSW school holiday period commencing 10.00am on the midpoint day of the school holiday period to 5.00pm on the Saturday prior to the commencement of the new school term in even numbered years;

(iv) Mother’s day weekend from Friday after school to Sunday 5.00pm;

(v) Shared children’s birthday.

(b) In the event that the mother lives more than 50 kilometres but less than 200 kilometres from the township of [W]:

(i) Each alternate weekend from Friday after school to Sunday 5.00pm or Monday 5.00pm if Monday is a public holiday;

(ii) For the first half of NSW school holiday periods commencing 10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;

(iv) Mother’s day weekend from Friday after school to Sunday 5.00pm;

(v) Shared children’s birthday;

(vi) If the mother lives within 100 kilometres of the children’s school, the contact referred to in (i) above will conclude with the mother taking the children to school on the Monday morning, or Tuesday if Monday is a public holiday.

(i) Two weekends per month from Friday after school to Sunday 5.00pm or Monday 5.00pm if Monday is a public holiday except that such contact shall occur within 100 kilometres of [W] once a month OR at the mother’s election, once every three weekends in Sydney from Friday after school to Sunday 5.00pm or Monday 5.00pm if Monday is a public holiday;

(ii) For the first half of NSW school holiday periods commencing10.00am the first day of school holiday to 5.00pm on the midpoint day of the school holiday period in odd numbered years;

(iv) Mother’s day weekend from Friday after school to Sunday 5.00pm;

(v) Shared children’s birthday.

(vi) On any occasions that the mother is in [W] and upon providing the father with not less than 14 days prior notice of her intention to spend time with the children and provided that she insures the children attend any activities they are required to attend during the period they are in the care of the mother 3.4

(d) That the children’s time with the mother pursuant to 3 hereof be suspended on the father’s day weekend from Friday after school to Sunday 5.00pm.

(e) The children’s time with the mother on weekends shall be suspended during school holidays.

(f) Such other times as mutually agreed by the parties from time to time.

(g) The children shall have liberal telephone communication with the mother between the hours of 6.00pm and 7.00pm.

For the purpose of the children spending time with the mother in accordance with these orders except for paragraph 3(a) above, the parties shall meet at a midway point between their respective residences for the purpose of change over.

For the purpose of the children spending time with the mother during school holidays when she has the first half, and on weekends when the children are to be returned on a non-school day, the mother shall collect the children from their school at [W] on Friday and return the children to the father’s residence at the conclusion of such contact.

That the parties authorise the children’s school to provide to the parents any information and/or documents requested by the parents.

Both parents are restrained from saying anything to or in the presence of the children which is in anyway abusive, belittling or demeaning of the other parent and further are restrained from allowing any other person to say anything to or in the presence of the children which is in anyway abusive, belittling or demeaning of the other parent.

Both parents are restrained from saying anything to or in the presence of the child about any dispute between the parents.

That the parties shall notify the other as soon as practicable in the event that the children or either of them suffer any illness, accident that requires medical treatment and shall provide the other party any information relevant to the treatment.

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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