Barak and Veitch - [2008] FMCAfam 335

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARAK & VEITCH

[2008] FMCAfam 335

FAMILY LAW – Parenting – estrangement from children – weight given to teenage children’s clearly expressed views.

Family Law Act 1975, ss.4, Part VII Division 1, 60CC(2), (2)(a), 60CC (3)(a), (b), (c), (i), (j), 60CC (4), 60CC (4A), 60CD, Part VII, Division 2, 61B, 61C, 61DA, 65DAA, 65DAC, 65DAE

C & C [2004] FamCA 708
Department of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218
Dylan & Dylan [2007] FamCA 842
Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 113
Goode v Goode (2007) 36 Fam LR 422
Harrison and Woollard (H & W) (1995) 18 Fam LR 788
In the Marriage of PA and JA Litchfield (1987) 11 Fam LR 435
R and R: Children’s Wishes (2000) 25 Fam LR 712
In the Marriage of R (Children’s Wishes) (2002) FLC ¶93-108
Reynolds and Reynolds (1973) 47 ALJR 499
U v U (2002) 211 CLR 238
W and G (No 2) (2005) FLC ¶93-248
ZN v YH & Anor [2002] FamCA 453

Bates, F., “`Completing the Charm’: The Relevance of Children’s Wishes in Contested Cases: A Contextual Commentary,” (2003) 5 Newcastle Law Review 97

Parkinson, P., “Decision-making about the best interests of the child: The impact of the two tiers,” (2006) 20 Australian Journal of Family Law 179
Taylor, N., “What do we know about involving children and young people in family law decision making? A research update,” (2006) 20 Australian Journal of Family Law 154
Aristotle, Nicomachean Ethics
Annas, J., The Morality of Happiness, (New York: Oxford University Press, 1993)
Kenny, A., Aristotle on the Perfect Life, (Oxford: Clarendon Press, 1992 [reprint 1995])
MacIntyre, A., A Short History of Ethics, (London: Routledge & Kegan Paul, 1966 [reprint 1984])
MacIntyre, A., After Virtue, (Second Edition) (Notre Dame: University of Notre Dame Press, 1984)

Applicant:

MR BARAK

Respondent:

MS VEITCH

File Number:

CAM 319 of 2006

Judgment of:

Neville FM

Hearing dates:

15, 16 & 20 November 2007

Date of Last Submission:

20 November 2007

Delivered at:

Canberra

Delivered on:

31 March 2008

REPRESENTATION

Counsel for the Applicant:

Ms Tonkin

Solicitors for the Applicant:

Elrington Boardman Allport Lawyers

Counsel for the Respondent:

Mr Hubert

Solicitor for the Respondent:

Capon and Hubert Barristers & Solicitors

Independent Children’s Lawyer:

Mr Stagg

ORDERS

All previous Orders are discharged.
The parents have equal shared parental responsibility for the children S born in 1993 and P born in 1994.
S and P will continue to live with their Mother.
S and P will attend upon Ms H, Clinical Psychologist, for counselling. At the conclusion of that counselling it is for Ms H to assess and make any recommendation(s) in relation to whether there is to be any joint counselling session(s) with their Father, and if so, when, where and how that is to occur. It is requested that Ms H provide copies of any assessment or report to the Court,…

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 Barak and Veitch

Details

AGLC: Barak and Veitch [2008] FMCAfam 335
Case: [2008] FMCAfam 335
Decision Date: 31 March 2008

CaseChat Overview and Summary

In the Family Court of Australia, the case of Barak and Veitch involved a dispute between the parents regarding the care, custody, and control of their two daughters, S and P. The children were born in 1993 and 1994, and the primary issue was determining the appropriate parenting arrangements for them. The court was tasked with deciding various aspects of the children's care, including their living arrangements, access to their father, and the conditions for any future contact. The parents also needed to address the children's emotional well-being and the impact of the proceedings on them.

The court considered several legal issues, including the best interests of the children as the paramount consideration, the principle of equal shared parental responsibility, and the need for the children to maintain a relationship with both parents. The court also needed to determine the appropriate conditions for the children's contact with their father, including the timing and nature of any counselling sessions and the circumstances under which the children could spend time with him. Additionally, the court needed to ensure that the children's welfare was protected and that the proceedings did not cause them further distress.

In reaching its decision, the court emphasised the importance of the children's emotional well-being and the need for them to maintain a relationship with both parents. The court found that the children would continue to live with their mother, but their father would have access to them under certain conditions. The court ordered that the children attend counselling with a clinical psychologist, who would assess whether joint counselling sessions with their father were appropriate and, if so, when and how they should occur. The court also allowed the father to send cards, gifts, and correspondence to the children after three months and permitted the children to spend time with their father at times and in a manner they themselves requested. The court further ordered that the parties and the children attend a family consultant in twelve months for a further family report and that the parents refrain from discussing the proceedings with the children or allowing others to do so.

The court's final orders discharged all previous orders, granted equal shared parental responsibility to both parents, allowed the children to live with their mother, and set out detailed conditions for the children's contact with their father. The court also emphasised the importance of protecting the children's welfare and ensuring that the proceedings did not cause them further distress. The Independent Children’s Lawyer was requested to explain the reasons and orders to the children, and the parents were required to provide written agreement before the children could read the judgment.

Orders

Orders of the court

All previous Orders are discharged.

The parents have equal shared parental responsibility for the children S born in 1993 and P born in 1994.

S and P will continue to live with their Mother.

S and P will attend upon Ms H, Clinical Psychologist, for counselling. At the conclusion of that counselling it is for Ms H to assess and make any recommendation(s) in relation to whether there is to be any joint counselling session(s) with their Father, and if so, when, where and how that is to occur. It is requested that Ms H provide copies of any assessment or report to the Court, both parents and to the Independent Children’s Lawyer.

After three months of the date of these Orders, the Father is permitted to forward appropriate cards, gifts, and correspondence to S and P. The Mother will ensure that any such correspondence is passed to the girls.

S and P will spend time and communicate with their father at times and in a manner upon which they themselves request. Their Mother is to facilitate any such time with their Father that the girls request.

In twelve months from the date of these Orders, the parties and the girls will attend upon Ms Lang, Family Consultant for the Family Court of Australia, for the purposes of Ms Lang producing a further Family Report to the Court. The parents will be notified in writing of the dates and times for any interviews to occur for the purpose of producing such a report.

Nothing in these Orders will prevent the parents reaching an agreement in writing, regarding the time and manner in which the girls spend time with their father.

Neither parent shall discuss these proceedings with S and P, nor cause or permit anybody else to do so.

10.

Neither parent will denigrate the other parent, to or in front of the child, nor cause or permit anybody else to do so.

AND IT IS NOTED:

(a) I request that the Independent Children’s Lawyer explain these reasons and Orders to the girls.

(b) Only with the written agreement of both parties shall the girls be permitted to read this judgment.

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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