Whitton and Whitton and Anor

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FAMILY COURT OF AUSTRALIA

WHITTON & WHITTON AND ANOR [2010] FamCA 1025
FAMILY LAW – CHILDREN – Interim parenting orders – With whom children live and spend time – Decisions made on an interim basis made on the basis of uncontested facts – Mother breached parenting orders by secretly relocating her children to another area of New South Wales – Mother alleges she relocated to avoid hostility and lack of communication of the paternal grandmother – Evidence fairly gives rise to an inference the hostility between the mother and grandmother is not as bad as the mother might suggest – State of communication is worsened by relocating secretly to a distant place – Mother is wary of the father who has been violent towards her – Father’s behaviour is regulated by an Apprehended Violence Order – Mother’s general practitioner asserts the mother suffers depression and has suicidal thoughts – Finding that the general practitioner’s letter is not an independently formed opinion – Three youngest children shall remain in the care of the mother only whilst they and the mother continue to live with the maternal grandmother in her home in the Newcastle district – All children shall continue to have regular interaction with each other and the interested adults in their lives
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 65AA, 65D,
Family Law Rules 2004 r 11.02(2)
APPLICANT: Mrs Whitton Senior
1st RESPONDENT: Ms Whitton
2nd RESPONDENT: Mr Whitton
INDEPENDENT CHILDREN’S LAWYER: Mr Rugendyke, Catherine Henry Partners
FILE NUMBER: NCC 1890 of 2009
DATE DELIVERED: 21 October 2010
PLACE DELIVERED: Newcastle
PLACE HEARD: Newcastle
JUDGMENT OF: Justice Austin
HEARING DATE: 21 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable
SOLICITOR FOR THE APPLICANT: Denise Clarke Solicitor & Advocate
COUNSEL FOR THE 1ST RESPONDENT: Not Applicable
SOLICITOR FOR THE 1ST RESPONDENT: Elizabeth Fleming & Associates
COUNSEL FOR THE 2ND RESPONDENT: Not Applicable
SOLICITOR FOR THE 2ND RESPONDENT: Fowler Predny Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Rugendyke, Catherine Henry Partners

Orders

IT IS ORDERED THAT

  1. The Application in a Case filed by the mother on 1 October 2010 is dismissed.

  2. The Response filed by the paternal grandmother on 21 October 2010 is dismissed.

  3. The costs reserved pursuant to Order 5 made on 27 September 2010 are reserved to the final hearing.

  4. The costs of the applicant paternal grandmother, respondent father and the Independent Children’s Lawyer incidental to today’s proceedings are reserved until the final hearing.

IT IS FURTHER ORDERED THAT

  1. The trial of this matter is listed to continue before Justice Austin at 10:00 am on Monday, 6 December 2010, for a period of four days.

  2. The first respondent mother and second respondent father shall file and serve any Amended Response by Friday, 29 October 2010.

  3. The parties shall file and serve the affidavits upon which they rely by Friday, 19 November 2010.

  4. Leave is granted to the applicant paternal grandmother to file and serve an…

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Details
Case
[2010] FamCA 1025
Decision Date

CaseChat Overview and Summary

In *Whitton and Whitton and Anor*, Justice Austin of the Family Court of Australia considered applications by the mother and the paternal grandmother. The mother's application, filed on 1 October 2010, and the paternal grandmother's response, filed on 21 October 2010, were both dismissed. The proceedings concerned interim parenting orders made on 12 May and 27 September 2010, which the paternal grandmother sought to preserve.

The court was required to determine the procedural path forward for the ongoing litigation, including the filing of evidence and the scheduling of the trial. Specific issues included the admissibility of affidavits, the calling of witnesses, and the exchange of documents and case outlines. The court also addressed the contentious matter of drug testing for the mother and father.

Justice Austin's reasoning focused on managing the case efficiently towards a final hearing. The dismissal of the applications and responses indicated a procedural step rather than a final determination on the merits of the parenting dispute. The court issued detailed orders to ensure all parties were prepared for the continuation of the trial on 6 December 2010, including strict timelines for the filing of affidavits and case outlines. A significant aspect of the orders, made by consent, mandated fortnightly random urinalysis drug screening for the mother and father, with specific protocols to ensure the integrity and transparency of the testing process.

The trial was listed to continue before Justice Austin on 6 December 2010. The court reserved costs incidental to the proceedings until the final hearing and granted leave for the parties to file specific affidavits and update subpoenas. The consent orders regarding drug testing were a key feature of the interim arrangements.

Orders

Orders of the court

IT IS ORDERED THAT

1.

The Application in a Case filed by the mother on 1 October 2010 is dismissed.

2.

The Response filed by the paternal grandmother on 21 October 2010 is dismissed.

3.

The costs reserved pursuant to Order 5 made on 27 September 2010 are reserved to the final hearing.

4.

The costs of the applicant paternal grandmother, respondent father and the Independent Children’s Lawyer incidental to today’s proceedings are reserved until the final hearing.

IT IS FURTHER ORDERED THAT

5.

The trial of this matter is listed to continue before Justice Austin at 10:00 am on Monday, 6 December 2010, for a period of four days.

6.

The first respondent mother and second respondent father shall file and serve any Amended Response by Friday, 29 October 2010.

7.

The parties shall file and serve the affidavits upon which they rely by Friday, 19 November 2010.

8.

Leave is granted to the applicant paternal grandmother to file and serve an affidavit of herself only.

9.

Leave is granted to the first respondent mother to file and serve affidavits of:

a. Herself; and

b. The maternal grandmother.

10.

Leave is granted to the second respondent father to file and serve affidavits of:

a. Himself; and

b. Ms M.

11.

The witness to be called by the Independent Children’s Lawyer will be the Family Consultant.

12.

Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits, without the leave of the Court.

13.

Leave is granted to the parties and Independent Children’s Lawyer to issue update subpoenae to any person or entity to whom subpoenae have been issued in the past.

14.

Leave is granted to the Independent Children’s Lawyer to issue a subpoena to the mother’s general practitioner, Dr AT.

15.

The parties shall by Wednesday, 1 December 2010, file with the Associate of Justice Austin an Agreed List of Documents.

16.

The parties shall by Wednesday, 1 December 2010, file with the Associate of Justice Austin, and serve upon one another, a Case Outline Document containing:

a. Chronology;

b. Summary of Argument; and

c. List of Authorities

17.

If any party should default in the compliance with these orders any other party may contact the Associate of Justice Austin, on notice to the other parties, to seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2) of the Family Law Rules.

18.

Liberty to restore the matter to the list on seven days notice for further procedural orders.

BY CONSENT, IT IS FURTHER ORDERED THAT

19.

The mother and father shall both submit to urinalysis drug screening upon the following conditions:

a. Until the hearing on 6 December 2010, those parties shall provide samples for testing each fortnight on a random basis and for that purpose the Independent Children’s Lawyer shall arrange the appointments at the pathology laboratory and shall inform the parties of the appointments by call to the telephone numbers provided by the parties to him by 5.00 pm the evening before the testing is scheduled to occur.

b. The Independent Children’s Lawyer must ensure that the pathology laboratory designated to conduct the testing does so in accordance with Australian/New Zealand Standard 4308/2001, and that the name and address of that pathology laboratory is known to the other parties.

c. At the commencement of each test the parties shall provide the pathology laboratory staff with photographic identification, shall submit to supervision of provision of the urine sample, and shall direct the pathology laboratory staff to verify the fact of both identification and supervision upon laboratory records.

d. The cost of testing is to be borne by parties.

e. The parties shall serve upon the Independent Children’s Lawyer and the paternal grandmother copies of the test results forthwith upon provision of those results to him or her.

f. The parties shall irrevocably authorise the pathology laboratory to provide copies of all test results to the Independent Children’s Lawyer upon request.

NOTATION

A. Although dismissed, the Response of the paternal grandmother sought preservation of the interim parenting orders made on 12 May and 27 September 2010, which is the result of dismissal of the mother’s Application in a Case.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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