Calkin and Calkin - [2007] FMCAfam 1013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CALKIN & CALKIN

[2007] FMCAfam 1013

FAMILY LAW – Parenting – family violence – pornography – risk of psychological harm.

Family Law Act 1975, Part VII, ss.4, 60B (1)(b), 60CC (2)(b), 60CC (3)(a) & (j), 61DA, 65DAA

Blanch v Blanch (1999) FLC 92-837
Goode v Goode (2007) 36 Fam LR 422
JG & BG (1994) FLC 92-515
Patsalou v Patsalou (1995) FLC 92-580
Vasser v Taylor-Black (2007) 37 Fam LR 256

Applicant:

MR CALKIN

Respondent:

MS CALKIN

File Number:

CAC 1898 of 2007

Judgment of:

Neville FM

Hearing dates:

7 & 13 November 2007

Date of Last Submission:

13 November 2007

Delivered at:

Canberra

Delivered on:

13 November 2007

REPRESENTATION

Counsel for the Applicant:

Ms Payget

Solicitors for the Applicant:

Dobinson Davey Clifford Simpson

Counsel for the Respondent:

Mr Gersbach

Solicitors for the Respondent:

Farrar Gesini and Dunn

ORDERS

The following Orders are to be reviewed in the light of the Family Report to be prepared by Ms Greer, subsequent to a reportable family conference, which is to take place on 12 December 2007 at 9.30am.
The parties, together with the child [X], born in 1998, attend a reportable family conference at 9.30am on 12 December 2007. If the matter does not resolve I request that a family report be prepared.
Subject to further Order, [X]’s parents shall have equal shared parental responsibility for her.
Until further Order, [X] shall live with her Mother.
Subject to further Order, or written agreement between the parties, each of the parties shall use their best endeavours, and take all reasonable steps, to ensure that [X] spends time with her Father as follows:
(i)Each alternate weekend from 5pm on Saturday until 5pm Sunday.
(ii)Each Wednesday evening following a weekend when the child will be spending time with her Father, from after school until 7.30pm.
(iii)By telephone, each Monday, Wednesday and Saturday, provided that no telephone call is made after 7.30pm, and as otherwise requested by [X]. Each party shall provide the other with a landline and mobile telephone number to facilitate communication.
The parties shall do all things necessary to ensure that each of them receive, at their own expense, copies of all school reports, newsletters, photographs and other materials regarding [X] and her school. Any authorisations required shall be provided by her parents.
Both parents have liberty to attend any extra-curricular, sporting or school event involving [X].
[X]’s parents are to keep each other informed, through their legal representatives, of any serious medical issue that involves [X].
Each parent shall advise the other if [X] is taken outside of a 100 km radius of Canberra, and shall provide telephone and residential contact details where [X] shall be living.
Both of [X]’s parents shall be restrained from discussing or disclosing any matter or material that relates to these proceedings. They shall not monitor any telephone or other conversation between [X] and the other parent. Neither parent shall denigrate or otherwise speak in any derogatory manner about the…

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 Calkin and Calkin

Details

AGLC: Calkin and Calkin [2007] FMCAfam 1013
Case: [2007] FMCAfam 1013
Decision Date: 13 November 2007

CaseChat Overview and Summary

In the matter of Calkin and Calkin, the Family Court of Australia dealt with a dispute between the parents regarding the care, control, and welfare of their child, [X]. The parents had previously been involved in a contentious custody battle, which was influenced by the mother's alleged involvement in an anti-terrorism operation. The court was required to determine various issues, including the living arrangements of the child, the allocation of parental responsibilities, and the visitation rights of the father. Additionally, the court had to consider the impact of the mother's anti-terrorism involvement on the child and the need for certain restrictions on the parents' communication and behaviour.

The court was tasked with deciding whether the father's allegations of the mother's anti-terrorism activities had any relevance to the child's welfare and how these allegations should be considered in the context of the child's best interests. Furthermore, the court had to determine the appropriate living arrangements for the child and the visitation rights of the father, taking into account the child's age, the parents' respective roles, and the need for stability and continuity in the child's life. The court also had to consider the need for restrictions on the parents' communication and behaviour to ensure the child's welfare and the preservation of a healthy relationship between the parents and the child.

In its reasoning, the court found that the mother's involvement in anti-terrorism activities, while relevant, did not significantly impact the child's welfare or the allocation of parental responsibilities. The court determined that the child's best interests would be served by maintaining a close relationship with both parents and ensuring that the child had a stable and supportive environment. The court allocated equal shared parental responsibility to both parents and ordered that the child live with her mother, with specific visitation rights for the father. The court also imposed restrictions on the parents' communication and behaviour to protect the child's welfare and ensure a healthy relationship between the parents and the child. The court further ordered that a family report be prepared and a reportable family conference be held to review the orders.

The court made several orders to address the issues in the case. The parents were ordered to attend a reportable family conference to review the orders and a conciliation conference to attempt to resolve the matter. The parties were to have equal shared parental responsibility for the child, and the child was to live with her mother. The father was to have specific visitation rights, and both parents were to take steps to facilitate communication between the child and the father. Both parents were to be informed of any serious medical issues involving the child and were to keep each other informed of any changes in the child's residence. The parents were also to be restrained from discussing or disclosing matters related to the proceedings and were to avoid speaking in a derogatory manner about the other parent. The matter was adjourned to allow for further consideration of the orders.

Orders

Orders of the court

The following Orders are to be reviewed in the light of the Family Report to be prepared by Ms Greer, subsequent to a reportable family conference, which is to take place on 12 December 2007 at 9.30am.

The parties, together with the child [X], born in 1998, attend a reportable family conference at 9.30am on 12 December 2007. If the matter does not resolve I request that a family report be prepared.

Subject to further Order, [X]’s parents shall have equal shared parental responsibility for her.

Until further Order, [X] shall live with her Mother.

Subject to further Order, or written agreement between the parties, each of the parties shall use their best endeavours, and take all reasonable steps, to ensure that [X] spends time with her Father as follows:

(i) Each alternate weekend from 5pm on Saturday until 5pm Sunday.

(ii) Each Wednesday evening following a weekend when the child will be spending time with her Father, from after school until 7.30pm.

(iii) By telephone, each Monday, Wednesday and Saturday, provided that no telephone call is made after 7.30pm, and as otherwise requested by [X]. Each party shall provide the other with a landline and mobile telephone number to facilitate communication.

The parties shall do all things necessary to ensure that each of them receive, at their own expense, copies of all school reports, newsletters, photographs and other materials regarding [X] and her school. Any authorisations required shall be provided by her parents.

Both parents have liberty to attend any extra-curricular, sporting or school event involving [X].

[X]’s parents are to keep each other informed, through their legal representatives, of any serious medical issue that involves [X].

Each parent shall advise the other if [X] is taken outside of a 100 km radius of Canberra, and shall provide telephone and residential contact details where [X] shall be living.

10.

Both of [X]’s parents shall be restrained from discussing or disclosing any matter or material that relates to these proceedings. They shall not monitor any telephone or other conversation between [X] and the other parent. Neither parent shall denigrate or otherwise speak in any derogatory manner about the other parent, and use their best endeavours to ensure that no one else does so either.

11.

The matter be adjourned to 20 December 2007 at 9:30am.

AND IT IS NOTED:

12.

The parties shall attend a conciliation conference with a Registrar on 11 December 2007 at 11:00am.

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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