FAMILY COURT OF AUSTRALIA
| WHELDON & DINH | [2010] FamCA 740 |
| FAMILY LAW – CHILDREN – ALLEGATIONS OF ABUSE – Assertions of unacceptable risk – The mother states that she will not accept a finding that the husband does not pose a risk – Consideration of the relationship chronology – Parties met online and were married in China – Mother and oldest child have spent considerable block periods living in China – Examination of the child’s disclosures and other ‘evidence’ of abuse relied on by mother – Consideration of the genuineness of the mother’s belief that the father has abused the oldest child – Consideration of the use of published research in Family Court trials – Consideration of best interests and reasonable practicability in light of MRR |
| Evidence Act 1995 (Cth) ss 79, 144 Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65AA, 65D, 65DAA, 65DAC, 69ZN, 69ZW |
| A & A (1998) FLC 92-800 AMS v AIF (1999) 199 CLR 160 Bolitho & Cohen (2005) 33 FamLR 471 Dylan & Dylan [2008] FamCAFC 109 Godfrey v Sanders [2007] FamCA 102 Goode v Goode (2006) FLC 93-286 ICI (Australia) v Workcover (NSW) (2004) 60 NSWLR 18 M v M (1988) 166 CLR 69 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Marsden and Winch (No. 3) [2007] FamCA 1364 McCall & Clark (2009) FLC 93-405 McCoy v Wessex (2007) 38 Fam LR 513 MRR v GR (2010) 263 ALR 368 Murphy & Murphy [2007] FamCA 795 N and S and the Separate Representative (1996) FLC 92-655 Napier v Hepburn (2006) 36 Fam LR 395 Neil v Nott (1994) 68 ALJR 509 Partington & Cade (No 2) (2010) 42 Fam LR 401 Patsalou & Patsolou (1995) FLC 92-580 Potter & Potter (2007) 37 Fam LR 208 Re C and J (1996) FLC 92-697 RG v JR [2006] FamCA 293 Russell and Close (Unreported, Full Court of the Family Court Australia, Fogarty, Baker, Lindenmayer JJ, 25 June 1993) Starr and Duggan [2009] FamCAFC 115 U v U (2002) 211 CLR 238 X & X (2000) FLC 93-017 |
| APPLICANT: | Mr Wheldon |
| RESPONDENT: | Ms Dinh |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Chan |
| FILE NUMBER: | BRC | 8725 | of | 2008 |
| DATE DELIVERED: | 20 August 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 26-28 July 2010 |
REPRESENTATION
| APPLICANT: | Applicant appears in person |
| COUNSEL FOR THE RESPONDENT: | Ms Fajardo |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr George |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER | Legal Aid Queensland |
Orders
Parental Responsibility
In respect of all “major long-term issues” as that expression is defined in the Family Law Act 1975 (as amended), the mother and father of the children S born … March 2004 and T born … January 2008 shall have equal shared parental responsibility.
In respect of issues that are not “major long term issues”, the parties shall each have parental responsibility during all such time that the children are in their respective care.
Live With
The children shall live with their mother.
Time with the…
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- WHELDON & DINH [2010] FamCA 740
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- [2010] FamCA 740
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CaseChat Overview and Summary
The court ordered that the mother and father share equal parental responsibility for "major long-term issues" as defined by the *Family Law Act 1975*. For issues not classified as major long-term issues, each parent would have responsibility during the time the children were in their care. The children were ordered to live with their mother. The father's time with the children was to be initially supervised for a period of approximately six months, commencing with supervised contact in alternate weeks for up to six hours, and then transitioning to unsupervised time on alternate weekends for six hours. Commencing in September 2011, the father's time was to increase to alternate weekends from Friday after school until Monday before school during school terms, and specific halves of school holidays, with further adjustments to holiday time in subsequent years.
Further orders were made to facilitate parental communication and information sharing regarding the children's health and education. The mother was restrained from taking or sending the children out of Australia, and the Australian Federal Police were requested to place the children's names on the airport watch list. The children's passports were to be held by the father. All outstanding applications for parenting orders were dismissed, and the Independent Children's Lawyer was discharged. The orders also included a fact sheet detailing the obligations and consequences of contravention.
Orders
Orders of the court
Parental Responsibility
1.
In respect of all “major long-term issues” as that expression is defined in the Family Law Act 1975 (as amended), the mother and father of the children S born … March 2004 and T born … January 2008 shall have equal shared parental responsibility.
2.
In respect of issues that are not “major long term issues”, the parties shall each have parental responsibility during all such time that the children are in their respective care.
Live With
3.
The children shall live with their mother.
Time with the Father
4.
The father shall spend time with the children at all such times as might be agreed between the mother and father in writing and in the absence of any such agreement in accordance with the succeeding provisions of these orders.
5.
Until 18 February 2011 (being a period of approximately six (6) months commencing on the date of these orders) the father spend time with the children:
(a) Supervised by such person or persons as the parties might agree and, failing agreement, at a Contact Centre; and
(b) For such period as any such supervisor or contact centre might accommodate on a Saturday or Sunday each alternate week not exceeding six hours; and.
(c) Each of the parties shall do all such things, sign all such documents and pay all such reasonable fees as may be reasonably necessary to facilitate such supervision.
6.
Commencing on 19 February 2011, and each alternate weekend thereafter until the end of August 2011 ( a period of approximately six months), the father shall spend unsupervised time with the children on Saturday or Sunday in each alternate week for a period of 6 hours from 10am until 4pm.
7.
Commencing on the first weekend in September, 2011 the children spend time with the father:
(a) From after school Friday until before school Monday each alternate weekend during school term time;
(b) For the first half of the June/July, September/October and December / January school holidays in 2011 and each alternate year thereafter and the second half or each such holiday period in 2012 and each alternate year thereafter;
(c) For the Easter school holiday period in 2012 and each alternate year thereafter.
Publication
8.
To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 (Cth) or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to provide a copy of these orders and reasons for judgment to the Director of the Contact Centre at which the parties commence time pursuant to order five (5).
Receipt of Information
9.
Each party shall do all such things and sign all such documents as may be necessary or required to:
a. Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the children consult;
b. To speak to, and receive at that parent’s own expense, oral or written communication, from any school or other educational institution attended by the children;
c. Keep the other parent appraised of the telephone contact number upon which that parent can be contacted, providing notice within two (2) days of any change in same;
d. Notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care.
Restraint on Overseas Travel by Children
10.
The mother, by herself, her servants and/or agents is hereby restrained from taking or sending, or attempting to take or send, the children S born … March 2004 and T born … January 2008 from the Commonwealth of Australia, except as provided by these orders.
11.
The Court requests that the Australian Federal Police place the names of the children (S born … March 2004 and T born … January 2008) on the airport watch list at all points of international arrivals and departures in Australia for the purpose of preventing the removal of the children from Australia in breach of these orders.
12.
The Marshal and all officers of the Australian Federal Police and the police forces of the states and territories are requested and authorised to give effect to these orders.
13.
The passports of the children be held by the Father and not be used to travel by either the Mother or the Father except in accordance with agreement in writing between them or an Order of the Court.
Miscellaneous
14.
All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
15.
All subpoenaed documents shall 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.
16.
The Independent Children's Lawyer be discharged
17.
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.
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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