Bean and Blanchard - [2017] FCCA 2632

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAN & BLANCHARD

[2017] FCCA 2632

Catchwords:
FAMILY LAW – Parenting dispute about 7 year old child – child living with father and 2 half siblings living with mother – both parents having troubled history– father addressing drug problems but mother not – mother’s partner not on affidavit and not called as witness – mother’s mental health questionable – child settled in father’s care – not in child’s best interests to live with mother.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Goode v Goode [2006] FamCA 1346

Applicant:

MR BEAN

Respondent:

MS BLANCHARD

File Number:

DGC 2078 of 2014

Judgment of:

Judge Burchardt

Hearing date:

12 October 2017

Date of Last Submission:

29 October 2017

Delivered at:

Dandenong

Delivered on:

17 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr E. Taghdir

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Ms Buchanan

Solicitors for the Respondent:

Macgregor Solicitors

Counsel for the Independent Children’s Lawyer:

Mr Goddard

Solicitors for the Independent Children’s Lawyer:

McCormack & Co

ORDERS

All previous parenting orders be discharged.
The Father have sole parental responsibility of the child [X] born (omitted) 2010 (“the child”).
The child live with the Father.
The child spend time with the Mother only as agreed between the parents in writing and the father be at liberty to impose conditions on such time as he considers necessary to ensure the child’s safety
The child communicate with the Mother as follows:
(a)By telephone, Skype or other audio-visual means by agreement between the parties from time to time with the father to facilitate such communication at least once per calendar month by agreement between the parents, or in default of agreement between 4.00pm and 5.00pm on the first Sunday of the month and on each of the following days:
(i)[X]’s birthday;
(ii)Mother’s Day; and
(iii)Christmas Day.
(b)By the exchange of cards, gifts and letters by agreement between the parties from time to time but at least once on each of:
(i)[X]’s birthday;
(ii)Mother’s Day; and
(iii)Christmas Day.
The Father be at liberty to monitor the telephone and audio visual communication pursuant to Order 4 and terminate it in the event it is not appropriate communication.
The Father be at liberty to withhold cards and gifts provided pursuant to Order 5 hereof in the event that they contain inappropriate content.
The parties keep each other advised of their current residential addresses and telephone numbers and notify the other of any change thereto within 24 hours of such change.
The appointment of the Independent Children’s Lawyer be discharged.
Pursuant to ss.65DA(2) and 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.

IT IS NOTED that publication of this judgment under the pseudonym Bean & Blanchard is approved pursuant to s.121(9)(g) of the Family Law…

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 Bean and Blanchard

Details

AGLC: Bean and Blanchard [2017] FCCA 2632
Case: [2017] FCCA 2632
Decision Date: 17 November 2017

CaseChat Overview and Summary

In the matter of Bean and Blanchard, heard before Judge Burchardt, the dispute concerned parenting orders for a child born in 2010. The father sought sole parental responsibility and orders for the child to live with him, with limited time and communication arrangements with the mother.

The court was required to determine the best interests of the child in light of the circumstances presented by the parties. This involved assessing the appropriate level of parental responsibility for each parent, the living arrangements for the child, and the nature and extent of the child's time and communication with the non-resident parent. The court also considered the role of an Independent Children's Lawyer and the implications of contravening the final orders.

Judge Burchardt ordered the discharge of all previous parenting orders. The father was granted sole parental responsibility, and the child was to live with him. The child was to spend time with the mother only as agreed in writing by the parents, with the father at liberty to impose conditions to ensure the child's safety. Communication between the child and mother was to occur via agreed electronic means at least monthly, and on specific significant dates, with the father having the right to monitor and terminate such communication if deemed inappropriate. The father could also withhold cards and gifts containing inappropriate content. The court also noted that particulars of obligations and consequences of contravention were set out in an attachment to the orders, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975*. The appointment of the Independent Children's Lawyer was discharged.

Orders

Orders of the court

All previous parenting orders be discharged.

The Father have sole parental responsibility of the child [X] born (omitted) 2010 (“the child”).

The child live with the Father.

The child spend time with the Mother only as agreed between the parents in writing and the father be at liberty to impose conditions on such time as he considers necessary to ensure the child’s safety

The child communicate with the Mother as follows:

(a) By telephone, Skype or other audio-visual means by agreement between the parties from time to time with the father to facilitate such communication at least once per calendar month by agreement between the parents, or in default of agreement between 4.00pm and 5.00pm on the first Sunday of the month and on each of the following days:

(i) [X]’s birthday;

(ii) Mother’s Day; and

(iii) Christmas Day.

(b) By the exchange of cards, gifts and letters by agreement between the parties from time to time but at least once on each of:

(i) [X]’s birthday;

(ii) Mother’s Day; and

(iii) Christmas Day.

The Father be at liberty to monitor the telephone and audio visual communication pursuant to Order 4 and terminate it in the event it is not appropriate communication.

The Father be at liberty to withhold cards and gifts provided pursuant to Order 5 hereof in the event that they contain inappropriate content.

The parties keep each other advised of their current residential addresses and telephone numbers and notify the other of any change thereto within 24 hours of such change.

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

10.

Pursuant to ss.65DA(2) and 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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