Whitecross & Reilly - [2016] FamCA 254

FAMILY COURT OF AUSTRALIA

WHITECROSS & REILLY

[2016] FamCA 254

FAMILY LAW – CHILDREN – question of the unacceptable risk to a child living with the mother where allegations made 20 years ago were then accepted by a trial judge – subsequent findings of unacceptable risk taken into account – no unacceptable risk found and no basis to change residence.

Family Law Act 1975 (Cth)

Evidence Act 1994 (Cth)

AIF v AMS (1999) 199 CLR 160
Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1998) 12 Fam LR 606
Runcorn & Raine (unreported [2008] FamCA 837)
U v U (2002) 211 CLR 238

APPLICANT:

Mr Whitecross

RESPONDENT:

Ms Reilly

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

2793

2008

DATE DELIVERED:

21 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30, 31 March 2016;
1, 13, 21 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McLeod

SOLICITOR FOR THE APPLICANT:

Altavilla Vessali

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Treyvaud

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kenna Teasdale Lawyers

Orders

That all parenting orders to date are discharged.
The mother have sole parental responsibility for all parenting decisions relating to B the child born … 2002.
Before any major long-term decision is made in relation to the child, the mother communicate with the father by email:
(a) the nature of the decision to be made; and
(b) her views as to what should be done; and
(c)requesting that he provide an answer within seven (7) days thereafter.
That if the father provides any information pursuant to the mother’s request as set out in the foregoing order, the mother shall consider it and, upon making any determination as to that decision, notify the father accordingly.
That should the father fail to provide any information to the mother within the seven (7) day period as provided in the foregoing order, the mother shall be entitled to make the decision without further consultation with the father.
That the child spend time with the father as follows:

(a)for one weekend in each three from 6.00pm on Friday until 6.00pm on Sunday;
(b)for one half of all school term holidays as agreed but failing agreement, from 10.00am on the first Saturday of the school term holidays until 6.00pm on the middle Saturday of each school term holiday period;
(c)for one half of the long summer holidays as agreed (but the duration shall also take into account the views of the child) but failing agreement, the half which coincides with the father spending time with children C and D Whitecross;
(d)for Christmas in each year from 5.00pm on 24 December until 2.00pm on 25 December in each even numbered year and from 2.00pm on 25 December until 2.00pm on 26 December in each odd numbered year;
(e)for Father’s Day in each year from 5.00pm on the Saturday evening until 5.00pm on the Father’s Day.

That the father’s time with the child be suspended…

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 Whitecross & Reilly

Details

AGLC: Whitecross & Reilly [2016] FamCA 254
Case: [2016] FamCA 254
Decision Date: 21 April 2016

CaseChat Overview and Summary

In the matter of Whitecross & Reilly, Cronin J considered parenting orders concerning a child born in 2002. The dispute involved the allocation of parental responsibility and the arrangements for the child's time with each parent.

The court was required to determine the extent of each parent's responsibility for making decisions regarding the child's upbringing, particularly major long-term decisions. Additionally, the court needed to establish a schedule for the child to spend time with the father, including provisions for school holidays and specific annual events, while also considering the father's entitlement to information regarding the child's welfare.

Cronin J ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility for all parenting decisions, with a specific process outlined for major long-term decisions requiring communication and consideration of the father's input within a seven-day timeframe. The father was granted specific time with the child, including regular weekend contact, half of school term holidays, and a division of long summer holidays, with detailed provisions for Christmas and Father's Day. The father was also entitled to obtain information about the child's progress and medical care, and to participate in school activities, subject to certain limitations. The court also addressed electronic communication between the father and child and discharged the Independent Children's Lawyer.

Orders

Orders of the court

That all parenting orders to date are discharged.

The mother have sole parental responsibility for all parenting decisions relating to B the child born … 2002.

Before any major long-term decision is made in relation to the child, the mother communicate with the father by email:

(a) the nature of the decision to be made; and

(b) her views as to what should be done; and

That if the father provides any information pursuant to the mother’s request as set out in the foregoing order, the mother shall consider it and, upon making any determination as to that decision, notify the father accordingly.

That should the father fail to provide any information to the mother within the seven (7) day period as provided in the foregoing order, the mother shall be entitled to make the decision without further consultation with the father.

That the child spend time with the father as follows:

(a) for one weekend in each three from 6.00pm on Friday until 6.00pm on Sunday;

(b) for one half of all school term holidays as agreed but failing agreement, from 10.00am on the first Saturday of the school term holidays until 6.00pm on the middle Saturday of each school term holiday period;

(c) for one half of the long summer holidays as agreed (but the duration shall also take into account the views of the child) but failing agreement, the half which coincides with the father spending time with children C and D Whitecross;

(d) for Christmas in each year from 5.00pm on 24 December until 2.00pm on 25 December in each even numbered year and from 2.00pm on 25 December until 2.00pm on 26 December in each odd numbered year;

(e) for Father’s Day in each year from 5.00pm on the Saturday evening until 5.00pm on the Father’s Day.

That the father’s time with the child be suspended on Mother’s Day from 5.00pm on the Saturday until the conclusion of school on the Monday morning after Mother’s Day.

That all school term time between the child and the father under these orders shall be suspended during school holiday periods and recommenced thereafter as though the school holidays and the suspension had not occurred.

That for the purposes of the orders, the father shall collect the child from the mother’s residence at the commencement of his time on the Friday and the mother collect the child from the father at the conclusion of his time from his residence.

10.

Notwithstanding the mother has sole parental responsibility for the child, the father shall be entitled to:

(a) obtain information as to the child’s progress and participate in all school activities to which the parents of children would normally be involved PROVIDED ALWAYS that attendances at all school events shall be subject to any determination to the contrary by the principal of the child’s school;

(b) obtain information from and attend upon, any medical practitioner providing treatment for the child including any counselling, but always subject to the entitlement of such health professional to decline to provide such information; and

(c) be entitled to be provided by the mother with details of any serious medical injury or illness sustained by the child when in the mother’s care.

11.

That the electronic communication between the father and the child be a matter to be by agreement between the parties in writing and failing agreement at least on one night per week to be determined by the father.

12.

That subject to explaining these orders to the child, the Independent Children’s Lawyer is discharged from the proceedings.

13.

That all applications of the parties are otherwise dismissed.

14.

That 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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