Brecht and James (No. 2) - [2013] FamCA 751

FAMILY COURT OF AUSTRALIA

BRECHT & JAMES (NO. 2)

[2013] FamCA 751

FAMILY LAW – CHILDREN – Best interests – children aged eight and seven years – application made by maternal grandfather to spend time with and communicate with the children and for the children to be relocated back to the Sunraysia region in Victoria – children currently live with father in Adelaide – children previously lived in the Sunraysia region until 2010 – when children’s mother passed away father relocated with children to Adelaide in January 2011 – effect of the children’s relocation upon half-sister, aged 13 years – whether children are subject to harm if spending time with the maternal grandfather and half-sister – whether father able to facilitate time between children and the maternal grandfather – consideration of best interests of the children – children to remain living with the father in Adelaide and to spend time with the maternal grandfather and accordingly the children’s half-sister.

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) Schedule 3
Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 60CD, 65D
Federal Magistrates Act 1999 (Cth) s 39
Family Law Rules 2004 (Cth) r 11.04 & Schedule 7

AMS v AIF; AIF v AMS (1999) 199 CLR 160; FLC 92-852
Coleman & Hindle and Ors [2010] FamCA 319
Donnell & Dovey (2010) 42 FamLR 559
Goode and Goode (2006) FLC 93-286
Heath & Hemming (No 2) [2011] FamCA 749
R and R: Children’s wishes (2000) FLC 93-000
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Brecht

RESPONDENT:

Mr James

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

692

2013

DATE DELIVERED:

8 October 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

14, 15, 16, 19, 20 and 21 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams

SOLICITOR FOR THE APPLICANT:

JR Watson Legal Services

COUNSEL FOR THE RESPONDENT:

Mr Anderson

SOLICITOR FOR THE RESPONDENT:

Gilbert & Mattner

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McNamee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That all existing orders in relation to parenting matters be discharged.
That the father have sole parental responsibility for the children

T James born … 2005 and M James born … 2006.
That the children live with the father in Adelaide.
That the children spend time with the maternal grandfather as follows:
(a)in Town X, failing agreement between the parties from 10.00 am until 6.00 pm on the Saturday of the first weekend after the commencement of the fourth school term in 2013;
(b)in Town X, for two weekends during the fourth school term in 2013, from 10.00 am on Saturday to 3.00 pm on Sunday as agreed between the parties and failing agreement, on the third and seventh weekends after the commencement of the fourth school term in 2013.
(c)in Town X, commencing December 2013, for the long school holiday period, for two five-day periods as follows:
(i)for five…

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 Brecht and James (No. 2)

Details

AGLC: Brecht and James (No. 2) [2013] FamCA 751
Case: [2013] FamCA 751
Decision Date: 8 October 2013

CaseChat Overview and Summary

The case of *Brecht and James (No. 2)* concerned an application by the maternal grandfather for orders regarding spending time with and communication with his grandchildren, aged seven and eight, and for their relocation back to the Sunraysia region in Victoria. The children resided with their father in Adelaide, having relocated from Sunraysia in January 2011 following the death of their mother. The father also raised concerns about the impact of any relocation on the children's half-sister, aged thirteen. The proceedings were heard by Thornton J.

The court was required to determine the best interests of the children, specifically considering whether spending time with the maternal grandfather and their half-sister posed a risk of harm. Further issues included the father's capacity to facilitate time between the children and the maternal grandfather, and the overall arrangements for the children's living situation and contact with their maternal grandfather. The court also had to consider the relevant provisions of the *Family Law Act 1975* (Cth), including sections 60B, 60CC, 60CD, and 65D, as well as the *Evidence Act 1995* (Cth) and the *Access to Justice (Federal Jurisdiction) Amendment Act 2012* (Cth).

Thornton J ordered that the children remain living with their father in Adelaide. Existing parenting orders were discharged, and the father was granted sole parental responsibility. The court made detailed orders for the children to spend time with the maternal grandfather, specifying arrangements for contact in both Town X and Adelaide, including during school terms and holidays. Provisions were also made for telephone and Skype communication between the children and the maternal grandfather, and reciprocal communication rights for the father during periods of contact. The court also ordered the father and maternal grandfather to attend counselling together to improve their communication and understanding, sharing the costs equally. Injunctions were granted restraining both parties from denigrating each other in the presence of the children.

Orders

Orders of the court

That all existing orders in relation to parenting matters be discharged.

That the father have sole parental responsibility for the children

T James born … 2005 and M James born … 2006.

That the children live with the father in Adelaide.

That the children spend time with the maternal grandfather as follows:

(a) in Town X, failing agreement between the parties from 10.00 am until 6.00 pm on the Saturday of the first weekend after the commencement of the fourth school term in 2013;

(b) in Town X, for two weekends during the fourth school term in 2013, from 10.00 am on Saturday to 3.00 pm on Sunday as agreed between the parties and failing agreement, on the third and seventh weekends after the commencement of the fourth school term in 2013.

(i) for five days from the day after the conclusion of the fourth school term in South Australia; and

(ii) for five days commencing on 8 January.

(d) in Adelaide, upon the maternal grandfather giving the father 21 days’ notice but not more than two times per school term, failing agreement between the parties from 10.00 am until 6.00 pm Sunday.

(e) in Town X from 2014, for two weekends during school term from 10.00 am on Saturday to 3.00 pm on Sunday as agreed between the parties and failing agreement, the third weekend and the seventh weekend after the commencement of each school term, with such time to be suspended during school holiday periods and recommence on the third Saturday after the resumption of the school term;

(f) in Town X, from 2014 for five days in each short school term holiday period, being the first half in each even numbered year and the second half in each odd numbered year.

That for the purposes of changeover in Town X, the parties attend at the M Contact Centre, Town X, with the father to deliver the children to and collect the children from the contact centre, unless otherwise agreed in writing between the parties.

That for the purposes of changeover in Adelaide, changeover be at a location deemed most appropriate by the Independent Children’s Lawyer, unless otherwise agreed in writing between the parties.

That the maternal grandfather be present at all times during those periods when the children are in his care or ensure that the children are supervised by a responsible adult and that it is appropriate for the child B to be present when the children are spending time with the maternal grandfather.

That the maternal grandfather be provided with copies of all school reports and all school photograph order forms at his expense.

That each party inform and keep the other party informed of any serious medical conditions suffered by the children whilst the children are in their care.

10.

That each party keep the other informed of a current telephone contact number and the residential address for the children.

11.

That the order made appointing the Independent Children’s Lawyer be discharged one month after the making of these orders.

12.

That during such periods when the children are not spending time with the maternal grandfather, he shall be entitled (together with the child B and other members of the maternal family) to contact the children via telephone or Skype at least twice a week at times to be agreed and in default of agreement between 6.30 pm and 7.30 pm on each Tuesday and Thursday. Each party is to facilitate such communication.

13.

That during such periods when the children are not spending time with the maternal grandfather, he shall be entitled (together with the child B and other members of the maternal family) to contact the children via telephone or Skype on the occasion of each of the children’s birthdays if the children are in the care of the father at such times as may be agreed but in default of agreement from 4.00 pm until 5.00 pm.

14.

That during any period that the children are spending time with the maternal grandfather, the father be at liberty to communicate with the children via telephone or Skype at least twice during any five day period and at least once during any weekend period via telephone or Skype. The times are to be agreed but in default of agreement between 5.00 pm and 6.00 pm on Saturday when there is overnight weekend contact and between 5.00 pm and 6.00 pm on Tuesday and Thursday during school holiday time. That communication with the children by telephone should take place in a private place so that the conversation is not overheard.

15.

That the parties be restrained and injunctions granted restraining each of them from denigrating the other to or in the presence and/or hearing of the children or allowing any other person to do so.

16.

That when the children are spending time with the maternal grandfather which coincides with the occasion of their birthdays, the father shall be entitled to contact the children via telephone or Skype at times to be agreed but in default of agreement between 5.00 pm and 6.00 pm on the occasion of their birthday.

17.

That the father and maternal grandfather:

(a) do all such acts and things to facilitate their commencing counselling, together with such counsellor/psychologist as is nominated by the Independent Children’s Lawyer;

(b) participate in counselling for the purposes of improving the parties’ communication with each other, improving the level of trust between the parties, improving the parties’ understanding of the stressors and anxiety that the continued conflict between them has on them and to decrease such conflict between them and further to discuss any issues arising from the implementation of these orders from time to time;

(d) continue counselling with such counsellor/psychologist as long as is recommended by such counsellor/psychologist.

18.

That pursuant to the Family Law Rules, this matter reasonably required the attendance of counsel.

19.

That the existing applications are otherwise dismissed and the case removed from the list of cases awaiting finalisation.

20.

That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached 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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