Wilson and Carter - [2008] FMCAfam 349

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILSON & CARTER

[2008] FMCAfam 349

FAMILY LAW – Parenting – unilateral move by respondent interstate with child – long period of absence of father from child’s life – child exposed to violence between parents – the child’s schooling – whether private schooling is feasible – family trust – presumption of equal shared parental responsibility rebutted as not in the child’s best interests immediately – family violence and communication break down between parents – graduated time regime.

Family Law Act 1975 (Cth), ss.4(1), 60B(1)(a), 60(1)(b), 60CA, 60CC(2), 60CC(2)(a), 60CC(3)(b), 60CC(4), 61B, 65DAA, 61DA(1)

Patsalou and Patsalou (1995) FLC 92-580
JB and BG (1994) FLC 92-515
Blair and Blair [2007] FamCA 253
Kennedy and Kennedy [2007] FamCA 1221

Applicant:

MR WILSON

Respondent:

MS CARTER

File Number:

PAC6495 of 2007

Judgment of:

Pascoe CFM

Hearing dates:

18 March & 11 April 2008

Date of Last Submission:

25 March 2008

Delivered at:

Parramatta

Delivered on:

9 May 2008

REPRESENTATION

Applicant:

Mr Wilson

Solicitor Advocate for the Respondent:

Mr Jurd

Solicitors for the Respondent:

Ms Diamond

ORDERS

All previous parenting Orders be discharged.
The child R born in 2005 live with the respondent mother.
The child spend time with the applicant father on a gradual basis as follows;

From 9 May 2008

(a)From 10.00am to 4.00pm each Tuesday commencing 13 May 2008.
(b)From 10.00am to 6.00pm each alternate Saturday commencing 17 May 2008.

From 1 August 2008

(c)From 10.00am to 5.00pm each Tuesday commencing 5 August 2008
(d)Each alternate weekend from 10.00am Saturday to 5.00pm Sunday commencing 9 August 2008.

Pursuant to section 13C of the Family Law Act 1975 by 1 August 2008 the applicant must attend assessment for parenting programs specifically related to anger management and communication at a date and time organised by a dispute resolution coordinator at the Federal Magistrates Court.
Provided that the applicant has completed the assigned parenting course the applicant’s time with the child will increase as follows;

From 1 October 2008

(a)Each alternate week from 4.00pm Thursday to 4.00pm Friday commencing 9 October 2008.
(b)Each alternate weekend from 4.00pm Friday to 4.00pm Sunday commencing 3 October 2008.
(c)The child is to be in her mother’s care for the first half of the Christmas Holidays and on Christmas Day.
(d)The child is to spend time with the applicant from Friday
26 December 2008 (Boxing Day) for two weeks thereafter.
(e)The applicant may during this two week period return to New Zealand with the child in order to see her paternal grandparents and extended family. The applicant must provide the respondent with copies of return airline tickets to and from New Zealand no less that fourteen days (14) before departure as well as complying with order (14).
(f)The respondent is to make the child’s Passport available to the applicant at least 3 days before departure and undertake all such actions as are necessary to enable the child to travel on the dates specified.
(g)The child is to be returned to the respondent by…

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 Wilson and Carter

Details

AGLC: Wilson and Carter [2008] FMCAfam 349
Case: [2008] FMCAfam 349
Decision Date: 9 May 2008

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Wilson and Carter involved a dispute between the parents of a child, R, born in 2005. The primary concern was the determination of parenting arrangements, including residence and time-sharing, as well as the imposition of conditions and obligations on both parents to ensure the welfare of the child.

The legal issues before the court included the best interests of the child, the appropriateness of the proposed parenting arrangements, and the necessity for certain conditions to be imposed on the applicant to safeguard the child's welfare. The court had to consider the evidence presented regarding the parents' capabilities, the child's needs, and the impact of various arrangements on the child's well-being.

The court found that the proposed parenting arrangements were in the best interests of the child, taking into account the child's age, needs, and the evidence of both parents. The court determined that the child should primarily reside with the respondent mother, with the applicant father having specified time-sharing arrangements that would gradually increase. The court also imposed various conditions on the applicant, such as attending parenting programs, refraining from alcohol and drug use while caring for the child, and restrictions on contact with the respondent, to ensure the child's safety and well-being. These measures were deemed necessary given the applicant's history of anger issues and substance use.

The final orders included the discharge of previous parenting orders, the primary residence of the child with the respondent, and detailed time-sharing arrangements for the applicant. The court also mandated that the applicant attend specific parenting programs and imposed restrictions on his behaviour and contact with the respondent. Additionally, the orders addressed financial responsibilities, educational decisions, and health-related communications between the parties.

Orders

Orders of the court

All previous parenting Orders be discharged.

The child R born in 2005 live with the respondent mother.

The child spend time with the applicant father on a gradual basis as follows;

From 9 May 2008

(a) From 10.00am to 4.00pm each Tuesday commencing 13 May 2008.

(b) From 10.00am to 6.00pm each alternate Saturday commencing 17 May 2008.

From 1 August 2008

(d) Each alternate weekend from 10.00am Saturday to 5.00pm Sunday commencing 9 August 2008.

Pursuant to section 13C of the Family Law Act 1975 by 1 August 2008 the applicant must attend assessment for parenting programs specifically related to anger management and communication at a date and time organised by a dispute resolution coordinator at the Federal Magistrates Court.

Provided that the applicant has completed the assigned parenting course the applicant’s time with the child will increase as follows;

From 1 October 2008

(a) Each alternate week from 4.00pm Thursday to 4.00pm Friday commencing 9 October 2008.

(b) Each alternate weekend from 4.00pm Friday to 4.00pm Sunday commencing 3 October 2008.

(d) The child is to spend time with the applicant from Friday

26 December 2008 (Boxing Day) for two weeks thereafter.

(e) The applicant may during this two week period return to New Zealand with the child in order to see her paternal grandparents and extended family. The applicant must provide the respondent with copies of return airline tickets to and from New Zealand no less that fourteen days (14) before departure as well as complying with order (14).

(f) The respondent is to make the child’s Passport available to the applicant at least 3 days before departure and undertake all such actions as are necessary to enable the child to travel on the dates specified.

(g) The child is to be returned to the respondent by Friday 9 January 2009 by 4.00pm whereafter the orders set out in Order (5) resume.

(h) On the child’s birthday as follows:

(i) If the birthday falls on a school day, from after school the evening prior to the child’s birthday until the start of school the day of the birthday.

(ii) If the birthday falls on a weekend when the child would not have been spending time with the applicant for four hours from 9 am to 1 pm.

(i) For Father’s Day each year if it falls on a weekend when the child would not have been spending time with the applicant from 9 am to 5 pm.

From the time the child starts primary school;

(a) Each alternate week from the finish of the school day Thursday to the beginning of the school day Friday.

(b) Each alternate weekend from the end of school Friday to the Start of School Monday.

(c) For one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.

To facilitate the children’s living arrangements the respondent shall deliver the child to the [K] Police Station at the commencing of the time and the applicant shall return the child to the [K] Police Station at the conclusion of the time other than when the child is being collected or delivered to school or preschool.

The respondent is to have sole responsibility for making decisions about the long term care, welfare and development of the said child.

Each party has responsibility for making decisions as to the day to day care, welfare and development of the said child while the child is in their care.

10.

The respondent is to inform the applicant of any decisions concerning the long term care, welfare and development of the child.

11.

Neither party shall enrol the child in a continuing activity that requires the child to attend that activity during periods when the child is in the other party’s care unless both parents agree that the child should participate in it.

12.

Each of the parties shall be entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.

13.

Each party keeps each other informed of all medical, dental and other health related treatment being undertaken by the child.

14.

In the event the child is too ill to spend time with the applicant, the child shall remain in the respondent’s care and they shall provide the applicant as soon as practicable with a medical certificate should they require it.

15.

If either party intends to take the child on holidays or take the child away from their normal place of residence for a period of in excess of 24 hours that party shall give the other party prior written notice of the intended date of departure; the proposed destination and address, mobile telephone or landline number where the child can be contacted.

16.

Both parties give each other not less than twenty one (21) days notice in writing of their intention to change address.

17.

The respondent shall make the child available for contact with the paternal grandparents for a minimum of four hours in the event that the paternal grandparents are visiting Australia during a period when the applicant does not have residence.

18.

The applicant is restrained from;

(a) Consuming alcohol for twelve (12) hours prior to and during any period while the said child is in his care.

(b) Smoking marijuana during any period while the said child is in his care.

19.

The applicant be and is hereby restrained by himself, his servants or agents from telephoning, assaulting, harassing or intimidating the respondent or by entering into or upon, remaining upon or loitering near the premises situate at and known as Property [X] [K] in the State of New South Wales or any other premises at which the said respondent may be residing at or where she may be employed.

20.

The child is to attend the [B] School when she is ready to start Kindergarten.

21.

The applicant is solely responsible for the payment of child’s school fees at the [B] School.

22.

The applicant shall pay the school fees 12 months in advance and provide the respondent with receipt of payment

23.

The respondent is to pay for school uniforms, text books, stationary and any other material required for the child’s schooling.

24.

Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A 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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