Bartels and Scholz (No 2) - [2011] FamCA 331

FAMILY COURT OF AUSTRALIA

BARTELS & SCHOLZ (NO 2) [2011] FamCA 331

FAMILY LAW - CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where the parties have a poor relationship – where it is not in the best interests of the children for the parties to have equal shared parental responsibility – presumption rebutted – orders that the mother have sole parental responsibility.

FAMILY LAW - CHILDREN – final orders – with whom a child spends time – where the mother makes allegations of physical abuse of the children by the father – where the evidence does not support a finding that the father has physically abused the children – best interests – orders that the children live with the mother and that there be a gradual reintroduction of the time they spend with the father.

Family Law Act 1975 (Cth) ss 43, 60B, 60CA, 60CC, 61DA, 65DAA, 60CG, 69ZN & 69ZT

M & M (1988) 166 CLR 69
MRR v GR (2010) 263 ALR 368
Marvel and Marvel (No. 2) (2010) 240 FLR 367

APPLICANT: Mr Bartels

RESPONDENT: Ms Scholz

INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

FILE NUMBER: ADC 4998 of 2008

DATE DELIVERED: 16 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE:
12-16 April 2010;
28-30 April 2010 and
4 May 2010

Trial re-opened
17-21 January 2011;
24-25 January 2011;
27-28 January 2011;
7-9 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Legal Services Commission of SA

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers
Orders
(1)The interim order providing for the father to spend time with the children supervised at the H Contact Centre continue until such time as the Contact Centre is unable to provide that service or 1 July 2011 whichever first occurs.
(2)SAVE AND EXCEPT for paragraph (1) hereof all previous parenting orders in relation to the children V born on … March 2006 and E born on … August 2007 are discharged.
(3)The mother have sole parental responsibility for the children V and E.
(4)The children V and E live with the mother.
(5)Upon conclusion of the supervised time at the Contact Centre or 1 July 2011 (whichever first occurs) the father spend time with the children as may be agreed in writing and failing agreement as follows:
(a)until 6 July 2012 ON CONDITION THAT all such times to be supervised by and in the actual presence of the father’s mother, father’s father or the father’s sister Ms P:
(i) with E from 3.00 pm until 6.00 pm each Thursday afternoon and with V from after school until 6.00 pm each Thursday afternoon;

PROVIDED THAT E is collected from childcare and V is collected from school and both children are returned to the mother at the conclusion of the…

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 Bartels and Scholz (No 2)

Details

AGLC: Bartels and Scholz (No 2) [2011] FamCA 331
Case: [2011] FamCA 331
Decision Date: 16 May 2011

CaseChat Overview and Summary

In *Bartels and Scholz (No 2)*, Dawe J considered final parenting orders concerning the children V and E. The dispute centred on parental responsibility and the time the children would spend with each parent, particularly in light of allegations of physical abuse made by the mother against the father.

The court was required to determine whether the presumption of equal shared parental responsibility, as stipulated in section 61DA of the *Family Law Act 1975* (Cth), had been rebutted. Additionally, the court needed to assess the best interests of the children in relation to their living arrangements and the extent of time they should spend with each parent, considering the mother's allegations of abuse and the parties' poor relationship.

Dawe J found that the presumption of equal shared parental responsibility was rebutted due to the parties' acrimonious relationship and the conclusion that it was not in the children's best interests for them to have equal shared parental responsibility. While the court did not find evidence to support the mother's allegations of physical abuse by the father, it ordered that the children live with the mother and have sole parental responsibility. The court also made detailed orders for a gradual reintroduction of the father's time with the children, commencing with supervised contact and progressing to unsupervised time, with specific conditions regarding supervision by paternal relatives and restrictions on the father's ability to take the children to psychological or health professionals. The court also issued injunctions restraining both parties from denigrating each other in the presence of the children and restraining the father from denigrating a particular religion.

Orders

Orders of the court

(1) The interim order providing for the father to spend time with the children supervised at the H Contact Centre continue until such time as the Contact Centre is unable to provide that service or 1 July 2011 whichever first occurs.

(2) SAVE AND EXCEPT for paragraph (1) hereof all previous parenting orders in relation to the children V born on … March 2006 and E born on … August 2007 are discharged.

(3) The mother have sole parental responsibility for the children V and E.

(4) The children V and E live with the mother.

(5) Upon conclusion of the supervised time at the Contact Centre or 1 July 2011 (whichever first occurs) the father spend time with the children as may be agreed in writing and failing agreement as follows:

(a) until 6 July 2012 ON CONDITION THAT all such times to be supervised by and in the actual presence of the father’s mother, father’s father or the father’s sister Ms P:

(i) with E from 3.00 pm until 6.00 pm each Thursday afternoon and with V from after school until 6.00 pm each Thursday afternoon;

PROVIDED THAT E is collected from childcare and V is collected from school and both children are returned to the mother at the conclusion of the time spent by the mother collecting the children from the paternal grandparents’ home at Adelaide Suburb 1 and that during school holidays the time spent commence with the mother delivering both children to the father at the father’s parents’ home at 3.00 pm; and

(ii) each Saturday from 10.00 am to 4.00 pm with handover and collection taking place at the father’s parents’ home at Adelaide Suburb 1;

(b) from Friday 6 July 2012 when the requirement for supervision shall cease:

(i) each alternate weekend from the conclusion of school on Friday until 5.00 pm Saturday; and

(ii) each intervening Thursday (once a fortnight) from after school Thursday until 6.00 pm;

PROVIDED THAT V is collected from V’s school and E from E’s school or from Childcare immediately after the collection of V with the mother to collect the children at the conclusion of time spent from the paternal grandparents’ home at Adelaide Suburb 1; and

PROVIDED THAT during the weekend time with the father the children shall sleep at premises at which either the father’s mother, father’s father or father’s sister Ms P are also residing.

(i) during school term each alternate weekend from after school on Friday to the commencement of school on Monday with the children to be collected from and returned to school; and

(ii) for half of each school holidays at times to be agreed and in default of agreement the mother to have the first half and the father to have the second half;

(6) The orders for the children to spend time with the father are suspended from 5.00 pm on Christmas Eve until 5.00 pm on Boxing Day each year, during which period the children will spend time with the father from 5.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.

(7) The mother shall be permitted to remove the children from the Commonwealth of Australia for a maximum of four (4) weeks each year and during that time the orders for the father spending time with the children are suspended PROVIDED THAT the mother provides the father with not less than four (4) weeks notice in writing of such travel together with full details of all tickets, itinerary, a copy of the children’s return air tickets and the mother’s written undertaking to return with the children to Australia.

(8) If not less than four (4) days prior to the mother’s departure overseas the father provides to the mother full particulars of his Skype address or landline telephone numbers the mother do cause the children to communicate with the father by telephone or Skype at least once every five (5) days whilst the children are outside of Australia.

(9) The Australian Federal Police remove the names of the children V born … March 2006 and E born … August 2007 from the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia.

(10) Both parties enrol and participate in Counselling Organisation 1 with a Counsellor other than Mr M and that each of the parties supply the Counsellor at Counselling Organisation 1 with copies of the Child Protection Service report in these proceedings together with the reports of Dr B and this judgment.

(11) The mother shall authorise and request the principal of any school attended by the children to provide to the father (at the father’s expense) copies of all school reports and school photograph order forms relating to the children.

(12) The mother do notify the father and keep the father informed of all schools, kindergartens and child care centres attended by the children providing such information to the father in writing not less than 7 days after any such change.

(13) Each party shall notify the other of any injury or illness suffered by the children when such injury or illness required hospital treatment or when either child is diagnosed with a serious ongoing medical condition such information to be provided to the other parent as soon as possible.

(14) Each party keep the other party informed of a telephone contact number and postal address.

(15) The father and any supervisor be restrained from using any form of physical discipline on the children.

(16) The mother and father are restrained and injunctions are granted restraining each of them from:

(a) denigrating the other in the presence or hearing of the children;

(b) causing or permitting any other person to denigrate the other party in the presence or hearing of the children.

(17) The father is restrained and an injunction is granted restraining him from denigrating Religion 1 and from causing or permitting anyone else to denigrate Religion 1 in the presence of the children.

(18) The father is restrained and an injunction is granted restraining him from taking the children for assessment treatment or any other attendance upon psychological or health professionals other than Counselling Organisation 1 or to a medical practitioner in the case of an emergency.

(19) The appointment of the Independent Children’s Lawyer is discharged three months from the delivery of judgment or as soon as Counselling Organisation 1 confirms both parents have enrolled and commenced attending at Counselling Organisation 1 whichever last occurs.

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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