Bartlett and Corey - [2008] FMCAfam 607

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARTLETT & COREY

[2008] FMCAfam 607

FAMILY LAW – Children – parenting orders – where child has resided in a shared care (week about) arrangement for an extended period – where father subjected mother to family violence during cohabitation – where father intimidates mother and lacks insight into the impact of his behaviour on her and the child – where father does not respect mother and is resentful of her – where both parties capable of meeting child's physical needs, but father lacking capacity to meet child's emotional needs – where father proposes that shared care arrangement continue in force and mother proposes that shared care arrangement be terminated – where father proposes that the parties retain equal shared parental responsibility for the child and mother proposes that she have sole parental responsibility – where parties' relationship is not such that they are able to communicate effectively – order for sole parental responsibility made in favour of mother – orders made to the effect that child live with mother and spend substantial and significant time with father.

Family Law Act 1975 (Cth)

Dearman (1908) 7 CLR 549
Goode (2006) FLC 93-286
Hungerford & Tank (2007) FamCA 637
M & S (2006) FamCA 1408
McLeay (1996) FLC 92-667
Mills & Watson (2008) FMCAfam2
Pender & Haywood [2007] FamCA 1526
Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334
Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321
Sanders (1976) FLCA 90-078
Schwarz (1979) 5 FAMLR 396, 399
Smith (1994) 18 FAMLR 55, 64
Taylor & Barker (2007) FamCA 1246

Applicant:

MS BARTLETT

Respondent:

MR COREY

File number:

MLC12573 of 2007

Judgment of:

Walters FM

Hearing dates:

28 – 30 May 2008

Date of last submission:

30 May 2008

Delivered at:

Melbourne

Delivered on:

13 June 2008

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

Morrison & Sawers

Counsel for the Respondent:

Mr Fitzpatrick

Solicitors for the Respondent:

David Stagg Tonkin & Co

ORDERS

IT IS ORDERED THAT:

All extant orders be discharged.
Subject to paragraph 3 below, the mother have sole parental responsibility for the child [A] born in 2004.
The mother inform the father of all proposals and decisions made by her which affect the child’s long term care, welfare and development.
The child live with the mother.
The child spend time with the father:
(a)subject to paragraph 6 below, from 3.30 p.m. (or after kindergarten or school when applicable) on Thursday until 9.00 a.m. (or the start of kindergarten or school when applicable) on Tuesday in each alternate week commencing 19 June 2008;
(b)from 5.00 p.m. Saturday until 9.00 a.m. (or the start of kindergarten or school on Monday when applicable) on Father’s Day weekend each year;
(c)for one week in each school term holiday period from 10.00 a.m. Saturday until 5.00 p.m. the following Saturday, alternating between the first week in even years and the second week in odd years;
(d)for alternate weeks…

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 Bartlett and Corey

Details

AGLC: Bartlett and Corey [2008] FMCAfam 607
Case: [2008] FMCAfam 607
Decision Date: 13 June 2008

CaseChat Overview and Summary

Bartlett and Corey involved a dispute between the parents of a child born in 2004 regarding the arrangements for the child's care and residence. The case was heard in the Family Court of Australia. The primary concern was determining the best living arrangements for the child and the respective responsibilities of the parents in ensuring the child's welfare.

The legal issues the court needed to decide included determining which parent should have primary care of the child, the visitation rights of the non-custodial parent, and the obligations of both parents to each other and their child. Additionally, the court had to address the parents' conduct towards each other and the child, ensuring that any communication between them was conducive to the child's best interests.

The court awarded sole parental responsibility to the mother, allowing the child to live with her while granting specific visitation rights to the father. The visitation schedule was detailed, with specific time periods during alternate weeks, school holidays, and special occasions. The court also mandated that the father must ensure the child attends scheduled kindergarten sessions and school during visitation periods. Furthermore, the court imposed obligations on both parents to maintain communication regarding the child's welfare, health, and education, and required the father to complete parenting and anger management courses. The court also issued restraining orders against the father to prevent him from harassing or intimidating the mother, as well as prohibiting him from speaking negatively about her in front of the child. These orders reflect the court's intention to ensure the child's best interests and to promote a healthy co-parenting relationship.

Orders

Orders of the court

IT IS ORDERED THAT:

All extant orders be discharged.

Subject to paragraph 3 below, the mother have sole parental responsibility for the child [A] born in 2004.

The mother inform the father of all proposals and decisions made by her which affect the child’s long term care, welfare and development.

The child live with the mother.

The child spend time with the father:

(a) subject to paragraph 6 below, from 3.30 p.m. (or after kindergarten or school when applicable) on Thursday until 9.00 a.m. (or the start of kindergarten or school when applicable) on Tuesday in each alternate week commencing 19 June 2008;

(b) from 5.00 p.m. Saturday until 9.00 a.m. (or the start of kindergarten or school on Monday when applicable) on Father’s Day weekend each year;

(c) for one week in each school term holiday period from 10.00 a.m. Saturday until 5.00 p.m. the following Saturday, alternating between the first week in even years and the second week in odd years;

(d) for alternate weeks during the long summer school holiday period commencing:

(i) in 2008/2009 and alternate years thereafter ─ from noon on 20 December until noon on 27 December, and each alternate week thereafter until 5.00 p.m. two days prior to the start of the school year; and

(ii) in 2009/2010 and alternate years thereafter ─ from noon on 27 December until noon on 3 January and each alternate week thereafter until 5.00 p.m. two days prior to the start of the school year; and

(e) as otherwise agreed.

In the event that the father resides outside the Shepparton area:

(a) paragraph 5 shall be subject to the father ensuring that the child attends all scheduled kindergarten sessions during that period; and

(b) paragraph 5 shall be varied upon the child starting school to commence after school on Friday and conclude at 6.00 p.m. on Sunday (or Monday, if it is a non school day).

The father’s time in paragraph 5 is suspended ─

(a) during all school holiday periods; and

(b) from 5.00 p.m. Saturday on Mother’s Day weekend each year.

The parties exchange a communication book on a fortnightly basis to record matters relevant to the care, welfare and development of the child.

Each parent do ensure at all times that the other is ─

(a) kept informed of their residential address (and any proposal to move) and contact telephone numbers;

(b) kept informed of any illness or injury requiring medical treatment for the child;

(c) kept informed of the name, address and telephone numbers of any health service provider engaged or proposed to be engaged in relation to the child, and any form of treatment administered, recommended or proposed for the child; and

(d) authorised to obtain any information and copies of any documents concerning the child which would normally be available to a parent, from ─

(i) any health service provider involved with the child; and

(ii) any educational institution or child care facility attended by the child.

10.

The father be and is hereby restrained from ─

(a) harassing, threatening or intimidating the mother;

(b) attempting to communicate with the mother by telephone (including text message) save in an emergency affecting the child; and

(c) criticising, belittling, rebuking or otherwise denigrating the mother or any member of her family (which includes her foster family) or friends to or in the presence or hearing of the child,

and from allowing any other person to do so.

11.

The father do, as soon as practicable, enrol in and complete ─

(a) a course in Post Separation Parenting; and

(b) a course in Anger Management,

and do provide to the mother’s solicitors a copy of the Certificate of Completion of each.

12.

All extant applications otherwise be dismissed.

AND THE COURT NOTES THAT:

13.

Pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

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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