WHITE & LOCKHART - [2011] FMCAfam 690

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITE & LOCKHART

[2011] FMCAfam 690

FAMILY LAW – Parenting dispute – case listed for final hearing – evidence of family counsellor indicating interim orders necessary rather than final orders – significant factual dispute – consideration of child’s best interests.

Family Law Act 1975, s.60CC
Evidence Act 1995, s.140

Goode v Goode [2006] FMCA 1346

Applicant:

MR WHITE

Respondent:

MS LOCKHART

File Number:

MLC 7583 of 2009

Judgment of:

Burchardt FM

Hearing date:

17 June 2011

Date of Last Submission:

17 June 2011

Delivered at:

Melbourne

Delivered on:

17 June 2011

REPRESENTATION

Counsel for the Applicant:

Ms Baczynski

Solicitors for the Applicant:

Roger O’Halloran

Counsel for the Respondent:

Mr Whitchurch

Solicitors for the Respondent:

Altavilla Vessali Barristers & Solicitors

ORDERS

The child [X] born [in] 2008 (“the child”) live with the mother.
The mother have sole parental responsibility for the child but she is required to consult with the father about any significant medical treatment for the child.
The child spend time with the father:
(a)Each alternate Saturday commencing 9 July 2011 from 9.00 am to 5.00 pm with the changeover at [address omitted];
(b)on each Tuesday and Thursday commencing 5 and 7 July 2011 respectively from 9.00 am to 6.00 pm with changeover at [address omitted];
(c)on Fathers Day from 10.00 am to 5.00 pm with changeover at [address omitted]; and
(d)as otherwise agreed between the parties.
The father is not to leave the child alone with the father’s adopted son [T].
Neither party is to take the child to their place of work.
In the event the father is not available to spend time with the child pursuant to order 3(b) the child is to remain at the [address omitted] Early Learning Centre with the father to be responsible for any additional fees.
The parties are to communicate with one another about the child by

e-mail or text.
The Watch List Order previously made in respect of the child is to remain in full force and effect.
Each of the father and the mother is to enrol in and complete a post-separation parenting course and to provide proof of same to the solicitors for the other party.
Both the father and the mother are restrained from denigrating the other in the hearing and/or the presence of the child.
The father pay the mother $25.00 each week into the mother’s nominated bank account (to be characterised as Child Support).
The father and the mother shall forthwith notify the other in the event of the child suffering serious accident or illness and provide to the other the child’s doctor’s name and hospital details including telephone numbers and both shall be permitted to liaise with the child’s doctors and they shall advise each other of any medical issue in respect of the child.
The matter be adjourned to this Court for final hearing on 31 January 2012 at 10.00 am, with an estimated hearing time of one day.
The party responsible for the…

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.

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Details

Case: [2011] FMCAfam 690
Decision Date: 17 June 2011

CaseChat Overview and Summary

The case of White and Lockhart involved a parenting dispute between the parents of a child born in 2008. The matter was heard in the Family Court of Australia. The parents were unable to reach an agreement on the living arrangements and care of their child, leading to a court decision on the matter. The court was required to consider the evidence and arguments presented by both parties and determine the living arrangements and parental responsibilities that would best serve the child's interests.

The court had to consider the evidence provided by a family counsellor, who indicated that interim orders were necessary rather than final orders. The court also had to consider the significant factual dispute between the parties and weigh their respective positions. The primary consideration was the child's best interests, and the court had to determine the living arrangements and parental responsibilities that would best serve those interests.

The court found that the child should live with the mother and that the mother should have sole parental responsibility for the child. However, the father was required to consult with the mother about any significant medical treatment for the child. The court also ordered that the child spend time with the father on specific days and times, and that the father was not to leave the child alone with his adopted son. The court further ordered that neither party was to take the child to their place of work, and that the parties were to communicate with one another about the child by e-mail or text. The court also made orders regarding child support, medical issues, and the completion of a post-separation parenting course.

The final orders of the court included provisions for the child to live with the mother, for the mother to have sole parental responsibility for the child with certain consultation requirements for the father, and for the child to spend specific times with the father. The court also made orders regarding child support, communication between the parties, medical issues, and the completion of a post-separation parenting course. The matter was adjourned to this Court for final hearing on a specified date.

Orders

Orders of the court

The child [X] born [in] 2008 (“the child”) live with the mother.

The mother have sole parental responsibility for the child but she is required to consult with the father about any significant medical treatment for the child.

The child spend time with the father:

(a) Each alternate Saturday commencing 9 July 2011 from 9.00 am to 5.00 pm with the changeover at [address omitted];

(b) on each Tuesday and Thursday commencing 5 and 7 July 2011 respectively from 9.00 am to 6.00 pm with changeover at [address omitted];

(d) as otherwise agreed between the parties.

The father is not to leave the child alone with the father’s adopted son [T].

Neither party is to take the child to their place of work.

In the event the father is not available to spend time with the child pursuant to order 3(b) the child is to remain at the [address omitted] Early Learning Centre with the father to be responsible for any additional fees.

The parties are to communicate with one another about the child by

e-mail or text.

The Watch List Order previously made in respect of the child is to remain in full force and effect.

Each of the father and the mother is to enrol in and complete a post-separation parenting course and to provide proof of same to the solicitors for the other party.

Both the father and the mother are restrained from denigrating the other in the hearing and/or the presence of the child.

The father pay the mother $25.00 each week into the mother’s nominated bank account (to be characterised as Child Support).

The father and the mother shall forthwith notify the other in the event of the child suffering serious accident or illness and provide to the other the child’s doctor’s name and hospital details including telephone numbers and both shall be permitted to liaise with the child’s doctors and they shall advise each other of any medical issue in respect of the child.

The matter be adjourned to this Court for final hearing on 31 January 2012 at 10.00 am, with an estimated hearing time of one day.

The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the

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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