BULL & GIBSON - [2015] FCCA 1960

FEDERAL CIRCUIT COURT OF AUSTRALIA

BULL & GIBSON

[2015] FCCA 1960

Catchwords:
FAMILY LAW – Parenting – child almost 6 years old – both parents’ mental health in issue – mother seeks father’s time be supervised.

Legislation:

Family Law Act 1975, ss.60, 65, 68, 114

Waterford and Waterford [2013] FamCA 33
Mazorski and Albright [2007] 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR and GR [2010] HCA 4
Moose v Moose (2008) FLC 93-375
Malburon and Anor & Waldlow [2013] FamCAFC 191
Slater v Light (2013) 48 Fam LR 573
L & T (1999) 25 Fam LR 590
Jacks & Samson (2008) FLC 93-387

Carnegie & Ginter [2013] FamCA 331

Applicant:

MR BULL

Respondent:

MS GIBSON

File Number:

ADC 4386 of 2013

Judgment of:

Judge Harland

Hearing dates:

9, 10, 11 & 12 February and 13 March 2015

Date of Last Submission:

28 April 2015

Place heard:

Adelaide

Delivered at:

Melbourne

Delivered on:

21 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr Britton

Solicitors for the Applicant:

Jane Ekin-Smyth

Counsel for the Respondent:

Ms Pyke SC

Solicitors for the Respondent:

Susan Litchfield Solicitor

Counsel for the Independent Children's Lawyer:

Ms Fuda

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

ORDERS

That the mother have sole parental responsibility for the child X (“the child”) born (omitted) 2009 subject to order 2.
Prior to making any decisions as to the child’s education (both current and future) and child’s religious and cultural upbringing, child’s health, child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the father, the mother shall:
(a)notify the father via email of the proposed change and the reasons why she considers such a change to be in the child’s best interests;
(b)invite the father to indicate his views by return email to the email address identified by her, such response to be provided by the father within seven (7) days;
(c)consider the father’s response in accordance with the child’s overall best interests prior to making any final decision; and
(d)upon reaching a final decision, advise the father by email within a further seven (7) days thereafter.
The child lives with the mother.
That the child spend time with the father as follows:
(a)In 2015 from 10am Saturday to 5pm Sunday of each alternate week with such time to continue during the school holidays;
(b)from the conclusion of school Thursday to 7.30pm on each intervening week and during school holidays this time will be extended to start at 10am;
(c)for the 2015 Christmas school holidays the father’s alternate weekend time shall be extended from 10 am Friday until 5pm Sunday and on the intervening week the time be extended as follows from 10am Thursday to 5pm Friday;
(d)as from the commencement of Term 1, 2016 from conclusion of school Friday to 5pm Sunday each alternate weekend;
(e)from conclusion of school Thursday to 7.30pm on each intervening week;
(f)for July and…

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 BULL & GIBSON

Details

AGLC: Bull and Gibson [2015] FCCA 1960
Case: [2015] FCCA 1960
Decision Date: 21 July 2015

CaseChat Overview and Summary

This matter concerned orders made by Judge Harland regarding the parental responsibility, living arrangements, and time spent with a child, X, born in 2009. The proceedings involved the child's mother and father, with the court determining the specific terms of their shared care and decision-making responsibilities.

The court was required to determine the extent of parental responsibility to be allocated to each parent, particularly concerning significant decisions about the child's education, religious and cultural upbringing, health, name, and living arrangements. Furthermore, the court needed to establish a detailed schedule for the child to spend time with the father, including provisions for holidays and special occasions, and to address the father's engagement with mental health services.

Judge Harland ordered that the mother have sole parental responsibility for the child, subject to specific notification and consultation requirements with the father regarding major decisions. The child was ordered to live with the mother, with a comprehensive schedule of time spent with the father detailed across various periods, including school holidays and specific annual events. Crucially, the father was ordered to obtain a mental health plan and engage with a psychologist, providing confirmation of attendance to the mother. Additional orders addressed communication, handovers, school-related involvement, and the exchange of information between parents to ensure ongoing parental involvement and transparency.

Orders

Orders of the court

That the mother have sole parental responsibility for the child X (“the child”) born (omitted) 2009 subject to order 2.

Prior to making any decisions as to the child’s education (both current and future) and child’s religious and cultural upbringing, child’s health, child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the father, the mother shall:

(a) notify the father via email of the proposed change and the reasons why she considers such a change to be in the child’s best interests;

(b) invite the father to indicate his views by return email to the email address identified by her, such response to be provided by the father within seven (7) days;

(c) consider the father’s response in accordance with the child’s overall best interests prior to making any final decision; and

(d) upon reaching a final decision, advise the father by email within a further seven (7) days thereafter.

The child lives with the mother.

That the child spend time with the father as follows:

(a) In 2015 from 10am Saturday to 5pm Sunday of each alternate week with such time to continue during the school holidays;

(b) from the conclusion of school Thursday to 7.30pm on each intervening week and during school holidays this time will be extended to start at 10am;

(c) for the 2015 Christmas school holidays the father’s alternate weekend time shall be extended from 10 am Friday until 5pm Sunday and on the intervening week the time be extended as follows from 10am Thursday to 5pm Friday;

(d) as from the commencement of Term 1, 2016 from conclusion of school Friday to 5pm Sunday each alternate weekend;

(e) from conclusion of school Thursday to 7.30pm on each intervening week;

(f) for July and September/October 2016 short term school holidays for 3 consecutive nights such that the father’s alternate weekend time be extended from after school on Friday until before school on Monday noting the time in accordance with paragraph (e) herein be suspended;

(g) once the time set out in paragraph (f) commences, X will spend time with the father in the intervening week from after school on Thursday until before school on Monday;

(h) from December 2016 Christmas school holidays for 4 consecutive nights such that the father’s alternate weekend time be extended from 3.30pm Friday to 5pm Tuesday of each alternate week noting the time in accordance with paragraph (e) herein be suspended;

(i) thereafter as and from 2017 for one half of all short and long term school holiday periods subject to Order (5).

That within 42 days of the date of these Orders, the father will attend upon a GP for the purpose of obtaining a mental health plan to engage with a psychologist and the father shall do the following:

(a) within 7 days of receiving the mental health plan, make an appointment with a psychologist.

(b) attend all appointments with the psychologist for such period the psychologist recommends.

(c) provide the psychologist with the reports of Dr B dated 13 September 2014, 29 April 2015, report of Dr L, Exhibit D and the reasons for judgment.

(d) at the end of six sessions or at the end of the period of engagement (whichever occurs first) provide the mother with a letter from his psychologist confirming the father’s attendance.

That until 30 October 2015 the father’s overnight time shall take place substantially in the presence of the paternal grandmother.

On each Father’s Day with the father from 10am to 5pm UPON NOTING the child shall be in the care of the mother on each Mother’s Day from 10am to 5pm.

The father shall spend time with the child from 3pm Christmas Eve 2015 to 3pm Boxing Day 2015 and each alternate year thereafter.

The father shall spend time with the child from 3pm Christmas Day 2016 to 3pm Boxing Day 2016 and each alternate year thereafter.

10.

The father spend time with the child on her birthday if a school day from the conclusion of school until 6.00pm and if a non-school day for a period of 4 hours by agreement between the parents and in default of agreement from 3pm to 7.00pm.

11.

All handovers that do not take place at the child’s school to take place at the McDonalds section of (omitted) on school days and at (omitted) on non-school days or as otherwise agreed between the parents.

12.

The father be at liberty to communicate with the child by telephone as agreed between the parents and in default of agreement on each Wednesday at 6.30pm with the father to telephone the child.

13.

Both parents keep the other informed about X’s general activities, health, education, development and day-to-day care including any medications administered to her during her time with a parent through the use of a communication book to be exchanged between the parents each time X moves from the care of one parent to the other.

14.

That within 7 days of the date of these orders the mother shall do all acts and things necessary to ensure that the father is placed on the school emergency contact details as the next of kin to be notified after the mother.

15.

That the father be at liberty to attend all school functions parents are usually invited to attend including but not limited to school activities, school and extra curricular events, parent-teacher interviews, concerts and any other activities undertaken by the child.

16.

The father be at liberty to obtain all school newsletters, information notices, school reports, photographs, school records and other information regarding the child’s progress at school, provided he meet any costs associated with obtaining this information from the child’s school.

17.

That each parent keep the other informed as to residential address and contact details that the said child is residing in and is contactable on, including email addresses.

18.

That each parent keep the other informed as to any medical emergency and the other parent be at liberty to attend upon the child being hospitalised.

19.

That each parent keep the other informed as to any medical practitioner, counsellor or any professional person treating the said child and each parent be at liberty to speak with and obtain all information regarding the said child.

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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