Blaine and Rodelgo (No.2) - [2017] FCCA 1672

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAINE & RODELGO (No.2)

[2017] FCCA 1672

Catchwords:
FAMILY LAW – Children – application for parenting orders – where Court has made a finding of unacceptable risk to children – whether final or interim orders should be made.

Legislation:

Family Law Act 1975, ss.69ZN, 69ZO, 69ZQ, 69ZR

Cases cited:

Blaine & Rodelgo [2017] FCCA 1641

Rice & Asplund (1979) FLC 90-725

Applicant:

MS BLAINE

Respondent:

MR RODELGO

File Number:

LEC 271 of 2015

Judgment of:

Judge Jarrett

Hearing date:

By written submissions

Date of Last Submission:

9 April 2017

Delivered at:

Brisbane

Delivered on:

20 July 2017

REPRESENTATION

Counsel for the Applicant:

Ms Harding

Solicitors for the Applicant:

O’Reilly & Sochacki

The Respondent appeared in person

Counsel for the Independent Children’s Lawyer:

Mr Theobald

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Lismore Family Law

ORDERS

All previous orders are discharged.
The mother have sole parental responsibility for the children, [X] born … 2011 and [Y] born … 2013 (“the children”).
The mother, in exercising her sole parental responsibility advise the father by email of the following:
(a)any proposed decision relating to the long term care and welfare of the children, including but not limited to;
(b)proposed decisions about which schools the children shall attend; and
(c)proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children.
The mother ensure that such notification is given to the father in writing not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency.
The mother consider any views expressed by the father in respect of such proposed decisions.
Each parent advise the other party and keep the other party advised of their current email address and advised the other party of any changes to that address within seven (7) days of such change occurring.
Each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child or children and do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
The children live with the mother.
The children spend time with their father as agreed between the parties and failing agreement, no less than a two (2) hour period fortnightly commencing in line with the regime of time the children spend with the father when these orders are made.
For the purposes of order (9) herein, unless the parties otherwise agree in writing, such time shall occur:
(a)immediately following these orders and until subparagraph (b) of this order is implemented, at the Town C Children’s Contact Centre;
(b)at the Relationships Australia Region K – Children’s Contact Service based at Town D State School, Town D, Queensland.
For the purposes of order (10)(b) hereof, both parties must forthwith:
(a)contact the Contact Centre within seven (7) days and request an appointment for assessment for suitability…

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.

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Details

Case: [2017] FCCA 1672
Decision Date: 20 July 2017

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Jarrett in relation to the children, [X] and [Y]. The dispute involved the mother and father regarding the children's long-term care, welfare, and living arrangements.

The court was required to determine the extent of parental responsibility for the children, the specific arrangements for the children's residence and time spent with each parent, and the conditions under which the father could have contact with the children. Additionally, the court needed to address communication protocols between the parents, restrictions on the father's contact with the mother and children, and the role of the Independent Children's Lawyer.

Judge Jarrett ordered that the mother have sole parental responsibility for the children, with specific requirements for her to consult the father via email on significant decisions concerning their long-term care, welfare, schooling, and medical treatment, providing him with at least twenty-eight days' notice. The children were to live with the mother, and the father was to spend time with them under supervised contact arrangements at designated contact centres, with costs shared equally. The father was also enjoined from directly or indirectly contacting the mother or approaching her or the children, and from being within a specified distance of their residences, school, or activities, except as provided for in the orders. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

All previous orders are discharged.

The mother have sole parental responsibility for the children, [X] born … 2011 and [Y] born … 2013 (“the children”).

The mother, in exercising her sole parental responsibility advise the father by email of the following:

(a) any proposed decision relating to the long term care and welfare of the children, including but not limited to;

(b) proposed decisions about which schools the children shall attend; and

(c) proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children.

The mother ensure that such notification is given to the father in writing not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency.

The mother consider any views expressed by the father in respect of such proposed decisions.

Each parent advise the other party and keep the other party advised of their current email address and advised the other party of any changes to that address within seven (7) days of such change occurring.

Each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child or children and do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

The children live with the mother.

The children spend time with their father as agreed between the parties and failing agreement, no less than a two (2) hour period fortnightly commencing in line with the regime of time the children spend with the father when these orders are made.

10.

For the purposes of order (9) herein, unless the parties otherwise agree in writing, such time shall occur:

(a) immediately following these orders and until subparagraph (b) of this order is implemented, at the Town C Children’s Contact Centre;

(b) at the Relationships Australia Region K – Children’s Contact Service based at Town D State School, Town D, Queensland.

11.

For the purposes of order (10)(b) hereof, both parties must forthwith:

(a) contact the Contact Centre within seven (7) days and request an appointment for assessment for suitability for supervised contact;

(b) attend for assessment at the times and places appointed by the Contact Centre;

(d) ensure that the children attend any appointments made by the Contact Centre for supervised contact;

(e) comply with all reasonable rules of the Contact Centre; and

(f) comply with all reasonable requests or directions of the staff of the Contact Centre.

12.

If after the assessment intake procedure the parties are accepted by the Contact Centre as suitable for the Contact Centre to facilitate supervised contact the father is to have contact with the children at times nominated by the Contact Centre and such contact is to occur at the Contact Centre. The costs of such contact will be met by the parties equally.

13.

The mother deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.

14.

The father may communicate with the children by cards, letters and gifts addressed to the children care of the mother, through her solicitor or as the mother may otherwise advise the father by email at Christmas, Easter and on the children’s birthdays.

15.

The mother shall be responsible for ensuring that having regard to the maturity of the child, no inappropriate written material and gifts from the father be given to the children and ensure that if the gift is appropriate that it will be passed onto the children.

16.

Should the children express a wish to write to the father, the mother will do all things necessary to assist the children in doing so.

17.

The except as is provided for in these orders father is restrained and an injunction issue restraining him from:

(a) directly or indirectly contacting the mother by any means whatsoever;

(b) approaching the mother or the children;

(d) being within one hundred (100) metres of the mother’s residence, her place of employment, the children’s school or the venue for any of their extracurricular activities.

18.

The Independent Children’s Lawyer be discharged.

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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