Balfour & Ferber - [2022] FedCFamC2F 1419

Federal Circuit and Family Court of Australia
(DIVISION 2)
Balfour & Ferber [2022] FedCFamC2F 1419

File number(s): MLC 6089 of 2021

Judgment of: JUDGE OBRADOVIC

Date of judgment: 21 October 2022

Catchwords: FAMILY LAW – Parenting – presumption of equal shared parental responsibility – concession of historical family violence – father is incarcerated – change of name – mother to have sole parental responsibility – child to live with mother – child to have telephone time and video calls with father.

Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 61DAA

Cases cited:
Banks & Banks [2015] FamCAFC 36

Chapman & Palmer [1978] FamCA 86

Jones v Dunkel [1959] HCA 8

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4 at [15]

R v Balfour [2021] VCC 155

Rice & Asplund [1979] FamCA 84

Sander & Hearn [2012] FMCAfam 812

Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 106

Date of hearing: 10 and 11 October 2022

Place: Parramatta

Counsel for the Applicant: Mr Whitchurch

Solicitors for the Applicant: Pentana Stanton Lawyers

Counsel for the Respondent: Ms Pearson

Solicitors for the Respondent: Keane Family Law
ORDERS

MLC 6089 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BALFOUR

Applicant

AND:
MS FERBER

Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

21 October 2022

THE COURT ORDERS THAT:
1.The mother, Ms Ferber, shall have sole parental responsibility for the child X, born in 2013.
2.The child previously known as X born in 2013 now be known as X.
3.The mother, Ms Ferber, is authorised to apply to the Victorian Registry of Births, Deaths and Marriages to register the change in the child’s name in accordance with order 2 above.
4.The child shall live with the mother.
5.The child shall spend time with the father, Mr Balfour, conditional upon the father not making any reference during such time to the child regarding the child’s care arrangement, and not denigrating the mother, as follows:
(a)via telephone on Monday and Thursday each week between 5.00pm and 5.30pm;
(b)via one (1) letter per week; and
(c)via one (1) video call every 3 months to occur on a Saturday or Sunday as can be accommodated by Town C Correctional facility.

6.The mother shall, as soon as reasonably practicable, inform the father of any serious illness, injury or medical condition sustained by the child and provide relevant particulars of any treatment received by the child together with the name of any hospital where the child is a patient and the name of any treating medical specialist.
7.The father shall be at liberty to receive any and all information related to the child’s schooling (from the child’s school) and engagement upon medical and allied health professionals (from such professionals), with this order to serve as an authority for same.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy…

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 Balfour & Ferber

Details

AGLC: Balfour & Ferber [2022] FedCFamC2F 1419
Case: [2022] FedCFamC2F 1419
Decision Date

CaseChat Overview and Summary

This case involves a dispute between the father, Mr Balfour, and the mother, Ms Ferber, regarding the care arrangements for their child, X. The father is currently incarcerated for serious drug-related offences and is serving a six-year and five-month term of imprisonment. The court had to determine whether the parents should have equal shared parental responsibility or whether the mother should have sole parental responsibility. The court also had to decide on the child's name change from Balfour to Ferber and the father's time with the child.

The court found that the father's criminal conduct and attitude towards authority, his propensity to downplay his bad behaviour, and his demonstrated lack of insight into his own behaviours and the impact of those behaviours on the child and the mother were all relevant matters for consideration in determining what is in X's best interest. The court also found that the mother's evidence regarding the father's inappropriate comments during phone calls with the child was more reliable than the father's evidence. Based on these findings, the court ordered that the mother have sole parental responsibility for the child, the child's surname be changed to Ferber, and the child spend time with the father via telephone and video calls under specific conditions.

In conclusion, the court made orders for the mother to have sole parental responsibility for the child, the child's surname to be changed from Balfour to Ferber, and the child to spend time with the father via telephone and video calls under specific conditions. The court also made other orders regarding communication between the parents and the father's access to information related to the child's schooling and medical engagement.

Orders