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Baulkham and Lester

Baulkham and Lester

Case [2017] FCCA 2311 14 September 2017

Procedural Fairness

Remedies

Family Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BAULKHAM & LESTER

[2017] FCCA 2311

Catchwords:
FAMILY LAW – Parenting – no dispute over live with – dispute over – whether child should spend any time with father – child strongly resistant – entrenched attitude – impact on child’s mental and psychological health – position of Independent Children’s Lawyer – whether mother should have sole parental responsibility – final orders in child’s best interests.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 61DA

Cases cited:

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

R & R: Children’s Wishes (2000) FLC 93-000

Applicant:

MS BAULKHAM

Respondent:

MR LESTER

File Number:

MLC 4212 of 2012

Judgment of:

Judge O'Sullivan

Hearing date:

7 September 2017

Date of Last Submission:

7 September 2017

Delivered at:

Dandenong

Delivered on:

14 September 2017

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

Solicitors for the Independent Children’s Lawyer:

Dandenong Family Lawyers

ORDERS

THE COURT ORDERS THAT:

All previous orders in relation to the child [X] born (omitted) 2006 (“the child”) be discharged.
The mother have sole parental responsibility for the child.
The child live with the mother.
The father communicate with the child in writing not more than once each month to an address provided by the mother and the mother facilitate any request by the child to respond to the father’s letters.
The child spend time with the father as agreed with the mother or in accordance with the child’s wishes.
The mother keep the father informed as soon as reasonably practicable of:
(a)Any medical problems or illness suffered by the child;
(b)Any specialist medical appointments for the child with any medical doctor, psychiatrist, psychologist, counsellor or therapist;
(c)The address for the purpose of the correspondence referred to in paragraph 4 above.
That each of the mother and the father refrain from negatively criticising or denigrating the other parent or members of his or her family or friends to the child or in the presence or within the hearing of the child and the mother and the father do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about the other parent or members of his or her family or friends to or in the presence or within the hearing of the child.
The Independent Children’s Lawyer explain the meaning and effect of the Orders to the child.
The appointment of the Independent Children’s Lawyer be discharged.
All extant applications be dismissed.
Pursuant to s 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Baulkham & Lester is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 4212 of 2012

MS BAULKHAM

Applicant

And

MR LESTER

Respondent

REASONS…

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 Baulkham and Lester

Details

AGLC: Baulkham and Lester [2017] FCCA 2311
Case: [2017] FCCA 2311
Decision Date: 14 September 2017

CaseChat Overview and Summary

In the matter of Baulkham and Lester, heard by Judge O'Sullivan, the dispute concerned parenting orders for a child born in 2006. The court was required to determine the future arrangements for the child's residence, parental responsibility, and communication between the parents.

The court's reasoning led to a significant alteration of previous orders. It was determined that the mother should have sole parental responsibility for the child, and the child was to live with the mother. Communication between the father and the child was to be limited to written correspondence once a month, with the mother facilitating any response from the child. The child's time spent with the father was to be as agreed with the mother or in accordance with the child's wishes. The mother was also ordered to keep the father informed of the child's medical issues and to provide him with her address for correspondence. Both parents were restrained from making negative remarks about each other or their families to the child, and were required to ensure no other person did so.

The court ordered the discharge of all previous orders concerning the child, the dismissal of all extant applications, and the discharge of the Independent Children's Lawyer. Crucially, pursuant to s 65DA(2) of the *Family Law Act 1975*, the orders included particulars of the obligations created and the consequences of contravention.

Orders

Orders of the court

THE COURT ORDERS THAT:

All previous orders in relation to the child [X] born (omitted) 2006 (“the child”) be discharged.

The mother have sole parental responsibility for the child.

The child live with the mother.

The father communicate with the child in writing not more than once each month to an address provided by the mother and the mother facilitate any request by the child to respond to the father’s letters.

The child spend time with the father as agreed with the mother or in accordance with the child’s wishes.

The mother keep the father informed as soon as reasonably practicable of:

(a) Any medical problems or illness suffered by the child;

(b) Any specialist medical appointments for the child with any medical doctor, psychiatrist, psychologist, counsellor or therapist;

That each of the mother and the father refrain from negatively criticising or denigrating the other parent or members of his or her family or friends to the child or in the presence or within the hearing of the child and the mother and the father do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about the other parent or members of his or her family or friends to or in the presence or within the hearing of the child.

The Independent Children’s Lawyer explain the meaning and effect of the Orders to the child.

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

10.

All extant applications be dismissed.

11.

Pursuant to s 65DA(2) 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 and these particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Baulkham and Lester [2017] FCCA 2311

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Cases cited in this decision · 13 of 13 shown

SCVG & KLD
[2014] FamCAFC 42 Para 9

…proaches in Crowley & Mendoza (2010) 43 FamLR 463 at [35] to [43] (Murphy J); Heath & Hemming (No.2) [2011] FamCA 749 at [87] (Kent J) and SCVG & KLD [2014] FamCAFC 42 at [68] to [91].…
Cannon & Acres
[2014] FamCA 104 Para 9

…the authorities and the changed position of the parties on the issue it is not necessary to consider doing so. [8] see the approach in Cannon & Acres [2014] FamCA 104. [9] see the approach in Oscar & Trainer [2008] FamCAFC 158 at [93] to [96] and Marsden & Winch [2013] FamCAFC 177.…
Marsden & Winch
[2013] FamCAFC 177 Para 9

…] see the approach in Cannon & Acres [2014] FamCA 104. [9] see the approach in Oscar & Trainer [2008] FamCAFC 158 at [93] to [96] and Marsden & Winch [2013] FamCAFC 177.…
Eyton & Eyton & Ors
[2013] FamCA 657 Para 2

…er s.65D of the Act, a number of steps are necessary.[5] The objects and principles set out in s.60B provide: [5] See approach in Eyton & Eyton & Ors [2013] FamCA 657 at para 31 to 38. “60B [Object of Part and Principles underlying it] (1) [Object of Part] The objects of this Part are to ensure that the best intere…
Heath & Hemming (No 2)
[2011] FamCA 749 Para 9

…Starr & Duggan [2009] FamCAFC 115 at [38] and approaches in Crowley & Mendoza (2010) 43 FamLR 463 at [35] to [43] (Murphy J); Heath & Hemming (No.2) [2011] FamCA 749 at [87] (Kent J) and SCVG & KLD [2014] FamCAFC 42 at [68] to [91].…
Sigley & Evor
[2011] FamCAFC 22 Para 1

…onsideration, in the context of how that relationship is to be exercised, of the benefits that will accrue.[7] [7] see also Sigley & Evor [2011] FamCAFC 22.…
MRR v GR
[2010] HCA 4 Para 9

…ave been examined in numerous authorities, including the decision of the Full Court in Goode & Goode (2006) FLC 93-286 and the High Court in MRR v GR (2010) 240 CLR 461.[6] [6] Ibid. see also Starr & Duggan [2009] FamCAFC 115 at [38] and approaches in Crowley & Mendoza (2010) 43 FamLR 463 at [35] to [43] (Murphy J);…
Wang & Dennison (No 2)
[2009] FamCA 1251 Para 1

…In Wang & Dennison (No. 2) [2009] FamCA 1251 at [77], Justice Bennett said: “It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of children can appear to reward bad behaviour on the part of one parent… ultimately, parental interests must be subordina…
Reiner & Reiner
[2009] FamCA 926 Para 1

…In a decision cited as Reiner & Reiner [2009] FamCA 926, His Honour Justice Cronin had this to say in relation to emotional needs: “245.Emotional needs are just as important in a child’s development as physical needs. The term “ emotional needs ” is vague and undefined. By it, the legislators intended to convey the…
Starr & Duggan
[2009] FamCAFC 115 Para 9

…decision of the Full Court in Goode & Goode (2006) FLC 93-286 and the High Court in MRR v GR (2010) 240 CLR 461.[6] [6] Ibid. see also Starr & Duggan [2009] FamCAFC 115 at [38] and approaches in Crowley & Mendoza (2010) 43 FamLR 463 at [35] to [43] (Murphy J); Heath & Hemming (No.2) [2011] FamCA 749 at [87] (Kent J)…
Irish & Michelle
[2009] FamCA 66 Para 4

…urt the father’s allegations in relation to this are not made out.[3] [3] Note the discussion on that issue in the decision of Irish & Michelle [2009] FamCA 66 at [77] to [79].…
Oscar & Traynor
[2008] FamCAFC 158 Para 9

…the issue it is not necessary to consider doing so. [8] see the approach in Cannon & Acres [2014] FamCA 104. [9] see the approach in Oscar & Trainer [2008] FamCAFC 158 at [93] to [96] and Marsden & Winch [2013] FamCAFC 177.…
Re F: Litigants in person guidelines
[2001] FamCA 348 Para 1

…nd the relevant sections of Part VII of the Act (and consistent with the principles set out by the Full Court in Re F: Litigants in Person Guidelines [2001] FamCA 348) the Court explained to them both the manner in which the final hearing would proceed, the order of calling of witnesses, and the right to cross-exam…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
60B, 60CC, 61DA 4 mentions (from Para 11)