Baker & Parker-Lesley - [2008] FamCA 1002

FAMILY COURT OF AUSTRALIA

BAKER & PARKER-LESLEY

[2008] FamCA 1002

FAMILY LAW – CHILDREN – parental responsibility – best interests of the child – whether the presumption of equal shared parental responsibility is rebutted pursuant to s 61DA(4) – not in the best interests of the child for the parties to have equal shared parental responsibility – mother to have sole parental responsibility

FAMILY LAW – CHILDREN – orders made for mother to provide father with information regarding child’s health and schooling

Family Law Act 1975 (Cth) ss 60B, 60CC & 61DA

APPLICANT:

Mr Baker

RESPONDENT:

Ms Parker-Lesley

INDEPENDENT CHILDREN’S LAWYER:

Ashley Kent

FILE NUMBER:

ADF

1683

1996

DATE DELIVERED:

11 November 2008

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

11 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr J.M. Bowler

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Services Commission

Orders

The mother have the sole parental responsibility for the child ….
The mother give the father twenty-eight [28] days notice in writing of any intention to change the school of the child.
The mother advise the father of any serious illness or accident suffered by the child and authorise any medical practitioner treating the child in respect to same to discuss the child’s health with the father AND IT IS DIRECTED that the father ensure that the mother has available at all times his telephone landline and mobile telephone number.
The mother ensure the father receives the child’s school reports within fourteen [14] days of same being released AND IT IS DIRECTED that the father continue to supply the mother with his current address to which the school reports can be forwarded.
The appointment of the Independent Children’s Lawyer is discharged within fourteen [14] days from today.
That the father file and serve a financial statement and annexed to that financial statement a true copy of his PAYG statements for the last financial year within 21 days from today.
That the mother provide the husband and the Court with an indication of what sort of enforcement order she is seeking within 14 days of receipt of the husband's financial statement.
I adjourn for further consideration the enforcement of the $825 costs order to 30 January 2009 at 10 am, before me.

IT IS NOTED that publication of this judgment under the pseudonym Baker & Parker-Lesley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1683 of 1996

MR BAKER

Applicant

And

MS PARKER-LESLEY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Today I have heard the evidence and submissions of the parties in relation to the orders that the parties seek concerning the child of the mother and the father, born in November 1995; who is therefore close to being aged 13.
Proceedings have been on foot in this Court, at various…

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: [2008] FamCA 1002
Decision Date: 11 November 2008

CaseChat Overview and Summary

In the matter of *Baker & Parker-Lesley*, Dawe J considered a dispute concerning parental responsibility for a child. The primary issue before the court was whether the presumption of equal shared parental responsibility, as stipulated by section 61DA(4) of the *Family Law Act 1975* (Cth), should be rebutted on the grounds that it was not in the child's best interests.

The court was required to determine if the presumption of equal shared parental responsibility was rebutted, and consequently, whether the mother should be granted sole parental responsibility. Additionally, the court needed to consider what orders, if any, should be made regarding the father's access to information about the child's health and schooling, and to address financial disclosure and enforcement of a costs order.

Dawe J reasoned that the presumption of equal shared parental responsibility was rebutted, finding that it was not in the child's best interests for the parties to share this responsibility equally. Consequently, the court ordered that the mother have sole parental responsibility for the child. The court also made specific orders requiring the mother to provide the father with advance written notice of any intention to change the child's school, and to inform him of any serious illness or accident suffered by the child, authorising medical practitioners to discuss the child's health with the father. Further orders directed the father to ensure the mother always had his contact telephone numbers and to continue supplying his current address for school reports. The court also discharged the Independent Children's Lawyer and made directions for the father to file and serve a financial statement and PAYG statements, and for the mother to indicate what enforcement order she was seeking. The enforcement of a costs order was adjourned for further consideration.

Orders

Orders of the court

The mother have the sole parental responsibility for the child ….

The mother give the father twenty-eight [28] days notice in writing of any intention to change the school of the child.

The mother advise the father of any serious illness or accident suffered by the child and authorise any medical practitioner treating the child in respect to same to discuss the child’s health with the father AND IT IS DIRECTED that the father ensure that the mother has available at all times his telephone landline and mobile telephone number.

The mother ensure the father receives the child’s school reports within fourteen [14] days of same being released AND IT IS DIRECTED that the father continue to supply the mother with his current address to which the school reports can be forwarded.

The appointment of the Independent Children’s Lawyer is discharged within fourteen [14] days from today.

That the father file and serve a financial statement and annexed to that financial statement a true copy of his PAYG statements for the last financial year within 21 days from today.

That the mother provide the husband and the Court with an indication of what sort of enforcement order she is seeking within 14 days of receipt of the husband's financial statement.

I adjourn for further consideration the enforcement of the $825 costs order to 30 January 2009 at 10 am, before me.

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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