Whitton and Whitton & Anor (No 2) - [2010] FamCA 1119

FAMILY COURT OF AUSTRALIA

WHITTON & WHITTON AND ANOR (NO. 2)

[2010] FamCA 1119

FAMILY LAW – CHILDREN – Which school the children should attend – Legislature does not intend considerations under Family Law Act 1975 (Cth) ss 60B and 60CC relating to parents to extend to parties who are not parents of the subject children – Family Law Act 1975 (Cth) does not import any presumption in favour of parents over non-parents in determining proper parenting orders – Factors under Family Law Act 1975 (Cth) s 60CC concerning the paternal grandmother may be considered under s 60CC(m) – Children’s risk of exposure to neglect by the mother can be monitored by ensuring the children attend the same school – Mother wants freedom to enrol children at a school in the geographical area she decides to live in – Mother’s freedom of movement is not the most influential consideration – Children’s best interests is the paramount consideration – Court is vested with the power to directly restrain parties – Power will be exercised sparingly – Other factors considered – Finding that children will attend the same school as their siblings

FAMILY LAW – CHILDREN – Parental responsibility – Consent orders made for equal shared parental responsibility

FAMILY LAW – CHILDREN – With whom the children will live and spend time – Consent orders do not expose the mother to an unacceptable risk of family violence

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG(1)(b), 64B, 65AA, 65D, 69ZU

Aldridge & Keaton (2009) FLC 93-421
Dennett & Norman [2007] FamCA 57
Potts & Bims & Ors [2007] FamCA 394
Sampson & Hartnett (No. 10) (2007) FLC 93-350

APPLICANT:

Mrs Whitton Snr

1st RESPONDENT:

Ms Whitton

2nd RESPONDENT:

Mr Whitton

INDEPENDENT CHILDREN’S LAWYER:

Mr Rugendyke, Catherine Henry Partners

FILE NUMBER:

NCC

1890

2009

DATE DELIVERED:

9 December 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

6 & 7 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sundstrom

SOLICITOR FOR THE APPLICANT:

Denise Clark, Solicitor & Advocate

COUNSEL FOR THE 1ST RESPONDENT:

Mr Davies

SOLICITOR FOR THE 1ST RESPONDENT:

Boyd Olsen Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT:

Mr Predny, 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

All former parenting orders concerning the following children are discharged:
(a)E and R, born … March 1997;
(b)       H, born … January 2000;
(c)N and T, born … February 2002;
(d)       A, born … March 2006; and
(e)       Z, born … July 2008.

BY CONSENT, IT IS FURTHER ORDERED THAT

With the consent of the parties, it is ordered in accordance with the document entitled “Consent Orders” signed by the parties and/or their legal representatives and the Independent Children’s Lawyer, dated 6 December 2010, which is marked Exhibit C and placed with the Court file:
2.1The children, E born … March 1997…

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: [2010] FamCA 1119
Decision Date: 9 December 2010

CaseChat Overview and Summary

In the matter of *Whitton and Whitton & Anor (No 2)*, Justice Austin of the Family Court of Australia considered a dispute concerning the schooling arrangements for seven children. The proceedings involved the mother, the paternal grandmother, and the father, with consent orders being sought regarding the children's living arrangements, time spent with each party, and parental responsibility. A key element of the dispute revolved around the mother's desire for flexibility in enrolling the children in schools in her chosen geographical area, contrasted with the court's focus on the children's best interests.

The court was required to determine the paramount consideration of the children's best interests in the context of parenting orders, particularly when non-parents, such as a paternal grandmother, were involved in the care arrangements. The court also had to consider the application of sections 60B and 60CC of the *Family Law Act 1975* (Cth) to parties who are not parents of the subject children, and whether any presumption favoured parents over non-parents. Furthermore, the court needed to address the specific issue of ensuring the children attended the same school to mitigate risks of neglect and to facilitate monitoring.

Justice Austin reasoned that the *Family Law Act 1975* does not import a presumption in favour of parents over non-parents when making parenting orders, and that considerations under sections 60B and 60CC are not intended to extend to parties who are not parents. However, factors concerning a paternal grandmother could be considered under section 60CC(m). The court found that the children's risk of exposure to neglect by the mother could be monitored by ensuring they attended the same school, and that the mother's freedom of movement was not the most influential consideration. The paramount consideration was the children's best interests, and the court exercised its power to directly restrain parties, albeit sparingly, to ensure this.

By consent, the court ordered that the children E and R, and H and N, would live with the paternal grandmother, while children T, A, and Z would live with the mother. Equal shared parental responsibility was ordered for all seven children. Specific time arrangements were detailed for the mother to spend with H and N, and for the paternal grandmother to spend with T, A, and Z, with provisions for their time with the father. Crucially, orders were made mandating that the children attend specific schools, namely O Public School and O High School, to ensure they attended the same schools as their siblings, with the operation of these orders to be facilitated by both the mother and the paternal grandmother.

Orders

Orders of the court

IT IS ORDERED THAT

All former parenting orders concerning the following children are discharged:

(a) E and R, born … March 1997;

(b) H, born … January 2000;

(d) A, born … March 2006; and

(e) Z, born … July 2008.

BY CONSENT, IT IS FURTHER ORDERED THAT

With the consent of the parties, it is ordered in accordance with the document entitled “Consent Orders” signed by the parties and/or their legal representatives and the Independent Children’s Lawyer, dated 6 December 2010, which is marked Exhibit C and placed with the Court file:

2.1 The children, E born … March 1997 (“E”) and R born … March 1997 (“R”), H born … January 2000 (“H”) and N born … February 2002 (“N”) shall live with the paternal grandmother.

2.2 The children T born … February 2002 (“T”), A born … March 2006 (“A”) and Z born … July 2008 (“Z”) shall live with the mother.

2.3 The paternal grandmother, the mother and the father shall share equally parental responsibility for all seven children.

2.4 The mother will spend time with H and N:-

(a) from the conclusion of school on Friday until 4:00pm on Sunday each alternate weekend commencing 17 December 2010;

(b) for one half of all term school holidays as agreed and failing agreement for the first half in each year ending with an odd number and the second half in each year ending in an even number;

(c) For one half of the first four weeks of the Christmas school holidays as agreed and failing agreement for the first half in each year ending with an odd number and the second half in each year ending in an even number;

(d) At such other times as agreed between the parties from time to time.

2.5 The mother will spend time with E and R by agreement with the paternal grandmother and in accordance with the wishes of E and R.

2.6 The paternal grandmother will spend time with T, A and Z:-

(a) from the conclusion of school on Friday until 4:00pm on Sunday each intervening weekend, commencing 10 December 2010;

(b) for one half of all term school holidays as agreed and failing agreement for the second half in each year ending with an odd number and the first half in each year ending in an even number;

(c) for one half of the first four weeks of the Christmas school holidays as agreed and failing agreement for the second half in each year ending with an odd number and the first half in each year ending in an even number.

(d) And such other times as agreed between the parties from time to time.

2.7 The operation of orders 2.4(a) and 2.6(a) will be suspended during term school holiday periods and during the first four weeks of Christmas school holiday periods and:-

(a) the operation of order 2.4(a) will resume on the first weekend after the paternal grandmother has concluded spending holiday time with the children T, A and Z pursuant to order 2.6(b) or 2.6(c) as the case may be;

(b) the operation of order 2.6(a) will resume on the first weekend after the mother has concluded spending holiday time with the children H and N pursuant to order 2.4(b) or 2.4(c) as the case may be.

2.8 The paternal grandmother will spend time with A and Z from 10:00am until 3:00pm each Tuesday until such time as A commences school and thereafter shall spend such time with Z.

2.9 On each occasion that T, A and Z or any of them spend time with the paternal grandmother, they shall spend time with the father by agreement between the paternal grandmother and the father.

2.10 The paternal grandmother will facilitate the children E, R, H and N spending time with the father as agreed with the father.

2.11 No party who is spending time with any of the children pursuant to these orders shall use any illegal drug or any prescribed drug other than in accordance with the prescription during the time that they are spending with the children or for twelve hours prior to the commencement of such time.

2.12 No party to these proceedings shall denigrate any other party to these proceedings in the presence or hearing of the children or permit any other person to do so.

2.13 Both the paternal grandmother and the mother shall within seven (7) days of the date of these orders authorise each school that any of the children living with each of them to provide to each other party copies of school reports, newsletters and other correspondence normally sent to the parents of children enrolled in such school, provided that if there is any expense associated with the provision of that material that the party who wishes to receive the material shall be responsible for the payment of that expense.

2.14 In the event that any of the subject children requires any treatment for any medical or health condition, then the party that arranges such treatment shall as soon as practicable after the making of any relevant appointment or the provision of any such treatment, notify each other party of the details of such appointment or the provision of such treatment and shall authorise the treating medical practitioner, allied health professional, hospital or other treating agency to provide to each other party such information as he or she may request in relation to the medical or health condition or treatment.

IT IS FURTHER ORDERED THAT

Unless otherwise agreed by the parties in writing, each of the parties shall take all reasonable steps to ensure that:

(a) The children N and T:

i) Attend the same school as one another; and

ii) Attend the same primary and secondary schools as H, at least until H completes his schooling

(b) The child A attends the same primary and secondary schools as N and T, at least until both N and T have completed their schooling; and

(c) The child Z attends the same infants, primary, and secondary schools as A, at least until A has completed her schooling.

For the purposes of Order 3 hereof, unless otherwise agreed by the parties in writing:

(a) The infants and primary school to be attended by the children shall be O Public School, O, NSW.

(b) The secondary school to be attended by the children shall be O High School, O, NSW.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

Costs are reserved for 28 days.

Any and all outstanding applications are dismissed.

NOTATION

A. Pursuant to Rule 10.15A of the Family Law Rules, it is noted that allegations of family violence have been made in the proceedings and that those allegations are addressed by the existence of a family violence order that will not expire until 29 July 2011.

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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