Barlow and Jarman - [2017] FamCA 682

FAMILY COURT OF AUSTRALIA

BARLOW & JARMAN

[2017] FamCA 682

FAMILY LAW – CHILDREN – PARENTING ORDERS – where there is a long history of litigation and a previous final hearing – where orders arising from that did not work successfully – where the mother concedes major issues leaving supervision and the extent of her time only to be determined.

Family Law Act 1975 (Cth)

B and B (1993) FLC 92-357
Doherty and Doherty [2016] FamCAFC 182
Rice and Asplund [1978] FamCA 84, (1979) FLC 90-725
Stott and Holger and Anor [2017] FamCAFC 152

APPLICANT:

Ms Barlow

RESPONDENT:

Mr Jarman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

AYC

2009

DATE DELIVERED:

6 September 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

24, 25 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Swan

SOLICITOR FOR THE APPLICANT:

Swan Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Kildea

SOLICITOR FOR THE RESPONDENT:

Nicholes Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bonney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rama Myers Family Lawyers

Orders

All existing parenting orders are discharged.
The father has sole parental responsibility for all major long-term decisions concerning X (the child) born … 2008.
The child shall live with the father.
Unless the parties agree to a shorter period, for 2 years from this date, the child spend time with the mother under supervision by the C Town Children’s Contact Service for one day every 4 weeks for as much of that day as can be accommodated by the manager of that service.
The father (or his nominee) shall deliver the child to the said contact service and collect her at the times nominated by the manager.
Upon the expiration of the 2 year period, the child spend such time with the mother as the parties agree and failing agreement, during each alternate weekend from 10 am on the Saturday until 5 pm on the Sunday including during school holidays.
Unless otherwise agreed, all changeovers shall take place at the contact service.
That the child communicate electronically with the mother (by FaceTime or by mobile telephone) every alternate Wednesday at 5.30 pm for up to 30 minutes but all such communications may be within the hearing of the father who may terminate the call if the mother discusses inappropriate matters with the child.
That for the purposes of paragraph [8], providing the mother gives the relevant telephone/FaceTime number details to the father, he shall be responsible for facilitating the communication.
By injunction, the mother is restrained:
(a)from attending at the child’s school save with the specific written permission of the school principal;
(b)communicating with the child otherwise than according to the terms of these orders;
(c)attending at the child’s home without the written permission of the father; and
(d)attending a venue at which the child is participating in an activity unless the father has given written permission.
The father is;
(a)at liberty to provide a copy of these orders to the child’s school…

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 Barlow and Jarman

Details

AGLC: Barlow and Jarman [2017] FamCA 682
Case: [2017] FamCA 682
Decision Date: 6 September 2017

CaseChat Overview and Summary

In *Barlow and Jarman*, heard by Cronin J, the court was required to determine parenting orders concerning a child born in 2008. The dispute involved the father and mother and their respective roles and contact with the child.

The central legal issues before the court were how to best ensure the child's welfare and best interests, particularly in relation to decision-making, living arrangements, and the nature and extent of contact between the child and each parent. This included determining the appropriate level of supervision for contact and addressing concerns regarding the mother's past conduct.

Cronin J reasoned that the existing parenting orders were no longer appropriate and made new orders to address the child's best interests. The court ordered that the father have sole parental responsibility for all major long-term decisions concerning the child, and that the child live with the father. Contact between the child and the mother was significantly restricted and supervised for an initial period of two years, with specific provisions for communication and changeovers. The court also issued injunctions restraining the mother from attending at the child's school or activities without permission, and from communicating with the child other than as permitted by the orders. Following the two-year period, the court outlined a framework for future contact arrangements, subject to agreement or further court determination.

Orders

Orders of the court

All existing parenting orders are discharged.

The father has sole parental responsibility for all major long-term decisions concerning X (the child) born … 2008.

The child shall live with the father.

Unless the parties agree to a shorter period, for 2 years from this date, the child spend time with the mother under supervision by the C Town Children’s Contact Service for one day every 4 weeks for as much of that day as can be accommodated by the manager of that service.

The father (or his nominee) shall deliver the child to the said contact service and collect her at the times nominated by the manager.

Upon the expiration of the 2 year period, the child spend such time with the mother as the parties agree and failing agreement, during each alternate weekend from 10 am on the Saturday until 5 pm on the Sunday including during school holidays.

Unless otherwise agreed, all changeovers shall take place at the contact service.

That the child communicate electronically with the mother (by FaceTime or by mobile telephone) every alternate Wednesday at 5.30 pm for up to 30 minutes but all such communications may be within the hearing of the father who may terminate the call if the mother discusses inappropriate matters with the child.

That for the purposes of paragraph [8], providing the mother gives the relevant telephone/FaceTime number details to the father, he shall be responsible for facilitating the communication.

10.

By injunction, the mother is restrained:

(a) from attending at the child’s school save with the specific written permission of the school principal;

(b) communicating with the child otherwise than according to the terms of these orders;

(d) attending a venue at which the child is participating in an activity unless the father has given written permission.

11.

The father is;

(a) at liberty to provide a copy of these orders to the child’s school and any health professionals upon whom she attends;

(b) at liberty to provide a copy of these orders and the reasons for judgment published this day to the Manager of the C Town Children’s Contact Service; and

(c) to promptly advise the mother electronically of any serious medical condition or injury suffered by the child and details of any medication provided for such condition or injury.

12.

Should any party (or the Independent Children’s Lawyer) desire to seek a costs order arising from these proceedings, they may make such application by written submission filed and served by no later than 4 pm on 29 September 2017 (with such submission duly endorsed that it has been so served and if so, how) and the recipient of any such submission shall have until 4 pm on 13 October 2017 to file and serve any reply (and with such submission similarly endorsed) and any such application shall be heard and determined in chambers.

13.

The order for the appointment of the Independent Children’s Lawyer is discharged subject only to the issue of any costs application.

14.

All extant applications are otherwise dismissed.

15.

It is certified that it was appropriate for the father and the Independent Children’s Lawyer to brief counsel.

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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