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
The Application in a Case filed by the mother on 1 October 2010 is dismissed.
The Response filed by the paternal grandmother on 21 October 2010 is dismissed.
The costs reserved pursuant to Order 5 made on 27 September 2010 are reserved to the final hearing.
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
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.
The first respondent mother and second respondent father shall file and serve any Amended Response by Friday, 29 October 2010.
The parties shall file and serve the affidavits upon which they rely by Friday, 19 November 2010.
Leave is granted to the applicant paternal grandmother to file and serve an…
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- Case
- [2010] FamCA 1025
- Decision Date
CaseChat Overview and Summary
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
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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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