Banks and Loffler - [2018] FamCA 62

FAMILY COURT OF AUSTRALIA

BANKS & LOFFLER

[2018] FamCA 62

FAMILY LAW – CHILDREN – With whom a child lives with and spends time – Where there are allegations of family violence and sexual assault and abuse – Where the mother asserts that the father poses an unacceptable risk to the parties’ child – Where the father has not spent any time with the child in over a year – Where the mother will not permit the child to see the father – Whether the father poses an unacceptable risk to the child – Where there is insufficient evidence as to whether the father assaulted the parties’ child – Where there are allegations that the father assaulted the mother’s child of a previous marriage – Whether the father should spend time with the parties’ child – Where the Independent Children’s Lawyer supports the proposition that the mother have sole parental responsibility for the child – Where the parties agree that shared parental responsibility is untenable

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(2A), 60CC(3), 69ZT
Baglio & Baglio (2013) FamCA 105 Briginshaw v Briginshaw [1938] HCA 34 Cotton & Cotton (1983) FLC 91-330 Dennison & Wang [2010] FamCAFC 182 Loddington & Derringford (No 2) [2008] FamCA 925 Mazorski v Albright [2007] FamCA 520 S & R (1999) FLC 92-834 Sampson & Sampson (1977) FLC 90-253 Sawant & Karanth [2014] FamCAFC 235 Sigley & Evor [2011] FamCAFC 22

APPLICANT:

Mr Banks

RESPONDENT:

Ms Loffler

INDEPENDENT CHILDREN’S LAWYER:

Brendan Bowler

FILE NUMBER:

ADC

2014

DATE DELIVERED:

12 February 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

22 - 26, 29 - 30 May 2017, 5 - 7 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Litigant in Person

COUNSEL FOR THE RESPONDENT:

Mr Lindsay

SOLICITOR FOR THE RESPONDENT:

SE Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hume Taylor & Co

Orders

That the mother have sole parental responsibility for B born … 2011 (“the child”).
That the said child live with the mother.
That the mother:-
(a)provide the father with a copy of each of the child’s school and kindergarten reports within seven (7) days of receipt of same;
(b)provide an appropriate authority to the child’s school to enable the father to contact the school directly and to obtain such information as may be reasonably available in respect of the child;
(c)advise the father as soon as applicable and in any event within twenty four (24) hours of the child:-
(i)being diagnosed with a serious or ongoing medical condition;
(ii)suffering an injury or condition requiring hospitalisation;
(d)provide the father with a current photograph of the child at least once in each six (6) month period with the photograph to be an original colour photograph which clearly depicts the child’s head and face;
(e) keep the father informed of the address at which the child resides.
That the father keep the mother…

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 Banks and Loffler

Details

AGLC: Banks and Loffler [2018] FamCA 62
Case: [2018] FamCA 62
Decision Date: 12 February 2018

CaseChat Overview and Summary

In the matter of Banks and Loffler, Berman J of the Federal Circuit Court of Australia made orders concerning the parental responsibility and living arrangements for a child born in 2011. The dispute centred on the arrangements for the child following the breakdown of the parents' relationship, with the court ultimately determining the primary care and communication protocols between the parents.

The court was required to determine who should have sole parental responsibility for the child and where the child should live. Additionally, the court had to establish specific orders regarding the exchange of information between the parents, including educational and medical reports, contact with the child's school and medical practitioners, and notification of significant events in the child's life. The court also considered provisions for the father's ongoing involvement, including communication, gifts, and the child's wishes as they mature.

Berman J ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The court then detailed a comprehensive set of orders designed to facilitate ongoing communication and information sharing between the parents. These included requirements for the mother to provide the father with school reports, authorise direct contact with the child's school, and notify the father of any serious medical conditions or hospitalisations. Further orders stipulated the provision of regular photographs, notification of the child's address, and authorisation for the father to obtain information from the child's practitioners at his expense. Provisions were also made for the father to send gifts and correspondence, and for the mother to inform the father if the child, upon reaching ten years of age, expressed a desire to communicate or see him. The appointment of an Independent Children's Lawyer was discharged.

Orders

Orders of the court

That the mother have sole parental responsibility for B born … 2011 (“the child”).

That the said child live with the mother.

That the mother:-

(a) provide the father with a copy of each of the child’s school and kindergarten reports within seven (7) days of receipt of same;

(b) provide an appropriate authority to the child’s school to enable the father to contact the school directly and to obtain such information as may be reasonably available in respect of the child;

(i) being diagnosed with a serious or ongoing medical condition;

(ii) suffering an injury or condition requiring hospitalisation;

(d) provide the father with a current photograph of the child at least once in each six (6) month period with the photograph to be an original colour photograph which clearly depicts the child’s head and face;

(e) keep the father informed of the address at which the child resides.

That the father keep the mother informed of his address and contact details.

That the mother provide details of any medical practitioner, health professional, counsellor, therapist or allied health professional (“the practitioner”) to which the child attends and shall authorise the said practitioner to provide the father with all information pertaining to the child as may be reasonably requested by him at his sole expense.

That the father be permitted to forward gifts and correspondence to the child to coincide with his birthday and Christmas and that the mother will ensure that any correspondence and gift are given to the child, with the child to be informed that any such correspondence and gift have been provided by the father.

That upon the child reaching ten (10) years of age and should the child thereafter seek to communicate or make contact with the father or shall express any wish to see the father THEN the mother shall forthwith contact the father and advise him of such request.

That the appointment of the Independent Children’s Lawyer be discharged.

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

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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