Castle and Castle - [2007] FamCA 1109

FAMILY COURT OF AUSTRALIA

CASTLE & CASTLE

[2007] FamCA 1109

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child communicates – Best interests of a child – Supervised Contact
APPLICANT:		Ms Castle

RESPONDENT:

Mr Castle

FILE NUMBER:

BRF

585

2006

DATE DELIVERED:

3 July 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

12, 13 and 14 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carmody of Counsel appeared for the Applicant Mother

SOLICITOR FOR THE APPLICANT:

Suthers Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steele of Counsel appeared for the Respondent Father

SOLICITOR FOR THE RESPONDENT:	WP Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Selfridge of Counsel appeared for the Independent Children’s Lawyer
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Gary Couper, Solicitor

Orders

(1)That the children, P born … July 2003 and S, born … December 2004 live with the Mother.
(2)That the Mother and Father have joint responsibility for making decisions regarding the long term and day to day care, welfare and development of the children.
(3)That the Mother have sole responsibility for the day to day care, welfare and development of the children.
(4)That the Father may communicate with both children at all reasonable times as agreed but failing agreement:
(i)by telephone once per week on Tuesday between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(ii)on Father’s Day by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(iii)on the children’s birthdays by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(iv)on Christmas Day by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;
(v)by way of correspondence in the form of birthday cards, Christmas cards and letters at any time.

(5)Each party shall keep the other informed of any change of contact address and/or contact phone number within twenty-four (24) hours of making such change.
(6)Whilst the children are in her care, the Mother shall not denigrate the Father in the children’s presence.
(7)This Order shall be authority for the Father to have access to any school reports and notice of any medical treatment information relating to the children.

IT IS NOTED that publication of this judgment under the pseudonym Castle & Castle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF585/2006

Ms Castle

Applicant

And

Mr Castle

Respondent

REASONS FOR JUDGMENT

Applicant Mother

Ms Castle - date of birth … May 1975 - resides in North Queensland with her two children.

Respondent Father

Mr Castle - date of birth … September 1969 - resides with two male friends in a house at … in Brisbane close to his parents (refer paragraph 3 of Father’s affidavit filed 4 August 2006).

Children

P born in July 2003 and S born in December 2004.

Paternal Grandparents

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 Castle and Castle

Details

AGLC: Castle and Castle [2007] FamCA 1109
Case: [2007] FamCA 1109
Decision Date: 3 July 2007

CaseChat Overview and Summary

In the matter of *Castle and Castle*, Barry J considered orders concerning the residence and communication arrangements for two children, P and S. The dispute centred on the practicalities of the parents' ongoing involvement in the children's lives following separation.

The court was required to determine the primary residence of the children, the allocation of decision-making responsibilities, and the specific terms of the father's communication with the children. Additionally, the court addressed the father's entitlement to information regarding the children's schooling and medical treatment, and imposed a restriction on the mother regarding disparaging remarks about the father.

Barry J ordered that the children, P and S, would live with the Mother. Both parents were to share joint responsibility for long-term decisions concerning the children's care, welfare, and development, while the Mother was granted sole responsibility for day-to-day matters. Specific communication arrangements were established for the Father, including weekly telephone calls, calls on Father's Day, birthdays, and Christmas, as well as the ability to send correspondence. The court also stipulated that each parent must inform the other of any changes to contact details within 24 hours and ordered that the Mother refrain from denigrating the Father in the children's presence. The Father was granted authority to access school reports and medical treatment information.

Orders

Orders of the court

(1) That the children, P born … July 2003 and S, born … December 2004 live with the Mother.

(2) That the Mother and Father have joint responsibility for making decisions regarding the long term and day to day care, welfare and development of the children.

(3) That the Mother have sole responsibility for the day to day care, welfare and development of the children.

(4) That the Father may communicate with both children at all reasonable times as agreed but failing agreement:

(i) by telephone once per week on Tuesday between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;

(ii) on Father’s Day by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;

(iii) on the children’s birthdays by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;

(iv) on Christmas Day by telephone between 6.00 pm and 7.00 pm with such communication to be initiated by the Father;

(v) by way of correspondence in the form of birthday cards, Christmas cards and letters at any time.

(5) Each party shall keep the other informed of any change of contact address and/or contact phone number within twenty-four (24) hours of making such change.

(6) Whilst the children are in her care, the Mother shall not denigrate the Father in the children’s presence.

(7) This Order shall be authority for the Father to have access to any school reports and notice of any medical treatment information relating to the children.

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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