Bosch and Rickard - [2011] FMCAfam 726

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOSCH & RICKARD

[2011] FMCAfam 726

FAMILY LAW – Undefended hearing in respect of time by father with three children – where two children not the biological children of father – where father failed to attend the hearing and had not filed any trial affidavits – extensive history of violence by the father against the mother and other persons in front of the children – incidents of cruelty to animals – where the father was devastated that he had lost access to firearms and could no longer hunt – where father had not physically abused the children – whether such history coupled with the father’s aggressive and angry behaviour and refusal to obtain any assistance or undergo psychiatric testing was enough to amount to unacceptable risk – where the concern is that the violence will escalate – where father has been charged with assaulting police after waiting outside the youngest child’s school and acting in a menacing behaviour towards the mother – where the children are genuinely afraid of the father having lived with a siege mentality – where the children are very strong and consistent with their views that they do not want to see the father – finding made that unacceptable risk existed – mother seeking change of name for youngest child who has neither the surname of the mother or the father – change of name allowed – where mother seeking order for sole parental responsibility – order for mother to have sole parental responsibility.

Family Law Act 1975, ss.4, 60B, 60CC, 60CA, 60CG, 61DA, 65AA, 65D, 68B

Briginshaw v Briginshaw (1938) 60 CLR 336
Chapman & Palmer (1978) FLC 90-510
Goode & Goode (2006) FamCA 1346
Johnson & Page [2007] FamCA 1235

Applicant:

MR BOSCH

Respondent:

MS RICKARD

File Number:

DNC 50 of 2010

Judgment of:

L. Turner FM

Hearing date:

21 June 2011

Date of Last Submission:

21 June 2011

Delivered at:

Darwin

Delivered on:

20 July 2011

REPRESENTATION

The Applicant:

No Appearance

Counsel for the Respondent:

Ms Holtham

Solicitors for the Respondent:

Holtham & Associates

Counsel for the Independent Children’s Lawyer:

Ms Orwin

Solicitor for the Independent Children’s Lawyer:

Margaret Orwin

ORDERS

All previous orders be discharged.
That the children [X] born [in] 1995, [Y] born [in] 1998 and [Z] born [in] 2004 live with the mother.
That the mother have sole parental responsibility for the children.
That the father shall not spend time with the children.
That the father shall not communicate with the children.
That the father be restrained and an injunction be granted restraining the father from:-
(a)Contacting or attempting to contact the mother;
(b)Contacting or attempting to contact the children;
(c)Communicating or attempting to communicate with the mother;
(d)Communicating or attempting to communicate with the children;
(e)Not coming within 500 metres of the mother’s residence, the mother’s place of work, or any schools attended to by the children.
That from the date hereof the child [Z] [Chalmers] born [in] 2004 shall be known as…

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.

Keep reading for free

Create a free CaseChat account to read Bosch and Rickard and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FMCAfam 726
Decision Date: 20 July 2011

CaseChat Overview and Summary

The matter before the court involved the parties Bosch and Rickard, who were engaged in a dispute over the care, control, and communication with their three children. The Federal Circuit and Family Court of Australia was tasked with determining various orders concerning the children's welfare and parental responsibilities. The court was required to address several legal issues, including the allocation of parental responsibility, the extent of parental contact, and the enforcement of communication restrictions and travel permissions.

The primary legal issues centred on the best interests of the children and the safety concerns raised by the mother. The court had to consider whether it was in the children's best interests to live with the mother, to be denied contact with the father, and to have their name changed. Additionally, the court examined the necessity of restraining orders to protect the mother and children from the father's alleged conduct. The reasoning of the court was grounded in the statutory framework provided by the Family Law Act 1975 and the inherent jurisdiction to make orders for the protection of persons involved in family law proceedings. The court concluded that the children's safety and welfare would be best served by granting sole parental responsibility to the mother, prohibiting the father from any contact with the children or the mother, and imposing stringent communication and proximity restrictions on the father.

The court's decision resulted in a comprehensive set of orders that significantly altered the dynamics of parental responsibilities and contact. The children were to live with the mother, who was granted sole parental responsibility. The father was completely barred from any form of contact with the children or the mother, including communication and physical proximity. Furthermore, the court ordered the name change of one child, permitted the mother to travel with the children outside Australia without the father's consent, and discharged any existing airport watch alerts. These orders reflect the court's determination to prioritise the safety and well-being of the children, as well as to address the specific concerns raised by the mother.

Orders

Orders of the court

All previous orders be discharged.

That the children [X] born [in] 1995, [Y] born [in] 1998 and [Z] born [in] 2004 live with the mother.

That the mother have sole parental responsibility for the children.

That the father shall not spend time with the children.

That the father shall not communicate with the children.

That the father be restrained and an injunction be granted restraining the father from:-

(a) Contacting or attempting to contact the mother;

(b) Contacting or attempting to contact the children;

(d) Communicating or attempting to communicate with the children;

(e) Not coming within 500 metres of the mother’s residence, the mother’s place of work, or any schools attended to by the children.

That from the date hereof the child [Z] [Chalmers] born [in] 2004 shall be known as [Z] Rickard and that the mother shall do all such things and sign all such documents as are necessary to change the child’s name with Births, Deaths and Marriages Registry within 7 days from the date hereof, and that this order will act an authority for such changes to be made with the provision of the mother’s signature only. If the father’s signature is required then a Registrar of the Family Court of Australia or Registrar of the Federal Magistrates Court of Australia is appointed pursuant to s.106A of the Family Law Act 1975 to execute any required documents on behalf of the father to give force and effect to this order.

That pursuant to section 26 Births Deaths and Marriages Registration Act (NT), the Registrar register the name of the child in accordance with Order (7).

That any airport watch alert in place in relation to the children [X] born [in] 1995, [Y] born [in] 1998 and [Z] born [in] 2004 be discharged.

10.

That the mother be permitted to travel outside the Commonwealth of Australia with the children without first obtaining the consent of the father.

11.

That the Independent Children’s Lawyer be discharged.

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.