EDGAR & HALLE - [2010] FamCA 58

FAMILY COURT OF AUSTRALIA

EDGAR & HALLE

[2010] FamCA 58

FAMILY LAW - CHILDREN - residence - Magellan - allegations of physical violence against mother - no disclosures by child to police, protective workers, teachers - unreliability of father’s accounts - no unacceptable risk with mother - unacceptable risk of emotional abuse with father - child to live with mother - sole parental responsibility to mother - time with father

Family Law Act 1975 (Cth) ss 60B(1), 60CC(1), 61DA, 65DAA(1) and (2), 60CD(2), 62G(2), 91B,
Mental Health Act 1986 s 37

Hartford & Ansilda [2009] FamCA 23
Hemiro & Sinla [2009] FamCA 181
Blanch v Blanch & Crawford (1999) FLC ¶92-837

FATHER:

Mr Edgar

MOTHER:

Ms Halle

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8444

2008

DATE DELIVERED:

3 February, 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

BROWN J.

HEARING DATE:

7, 8 and 9 December, 2009

REPRESENTATION

THE FATHER:

In person

COUNSEL FOR THE MOTHER:

Ms. Agresta

SOLICITOR FOR THE MOTHER:

Altavilla Vessali

COUNSEL FOR THE I.C.L.

Ms. Boymal

INDEPENDENT CHILDREN’S LAWYER

Kenna Teasdale

Orders

That all previous parenting orders and injunction in respect of the child G (“the child”) born … January, 2000 be discharged.
That the mother have sole parental responsibility for the child.
That the child live with the mother.
That subject to paragraphs (5) and (6) hereof, the father spend time and communicate with the child as follows :
(a)during school terms in each alternate week from the conclusion of school on Friday until the commencement of school the following Monday (or if Monday is a public holiday, Tuesday) commencing on 5 February, 2010 and thereafter recommencing on the first weekend in each school term;
(b)for one half of school holidays at times to be agreed and, failing agreement :
(i)the first half in 2011 and each alternate year thereafter; and
(ii)the second half in 2010 and each alternate year thereafter;
(c)if the child would not otherwise be with the father on Fathers’ Day, from 9:00 am. to 5:00 pm. on Fathers’ Day;
(d)if the child would not otherwise be with the father on the child’s birthday, for four hours on the child’s birthday at times to be agreed and failing agreement from 10:00 am. to 2:00 pm.;
(e)by telephone on each Tuesday and Thursday on which the child is not in the father’s care, the telephone call to be made by the child between 5:00 pm. and 6:30 pm. and to be facilitated by the mother;
(f)at such other times as are agreed between the parties.
If the child would not otherwise be with the mother on Mothers’ Day the child shall spend time with the mother from 9:00 am. to 5:00 pm. on Mothers’ Day.
If the child would not otherwise be with the mother on his birthday, the child shall spend time with the mother for four hours on his birthday at times to be agreed and failing agreement from 10:00 am. to 2:00 pm.
That save when changeovers occur…

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 EDGAR & HALLE

Details

AGLC: EDGAR & HALLE [2010] FamCA 58
Case: [2010] FamCA 58
Decision Date: 3 February, 2010

CaseChat Overview and Summary

In EDGAR & HALLE, Brown J of the Family Court of Australia determined parenting orders concerning the child G. The dispute involved the allocation of parental responsibility, living arrangements, and time spent between G and his parents, following previous orders and injunctions.

The court was required to consider the best interests of the child, G, in determining the parenting arrangements. Key issues included the father's capacity to provide a stable and appropriate environment, the impact of the father's attitude towards authority figures and his own behaviour on G, and the potential consequences of G living primarily with his father. The court also had to assess G's expressed wishes in light of his age and the circumstances surrounding those wishes.

Brown J placed significant weight on the submissions of the Independent Children's Lawyer (ICL) regarding the father's approach to authority figures and his own conduct, finding it to be poor role modelling for G. The court expressed concern that if G lived primarily with his father, he would be exposed to a hostile view of his mother and might learn to use aggression and dishonesty as responses to problems. The court also considered the evidence of Mr. S, who advised caution regarding G's expressed wish to spend more time with his father, noting that a child of G's age may not fully grasp the implications of extended separation from a parent. The father's confidence that G would not be negatively impacted by a move to his care was contrasted with Mr. S's contrary evidence.

The court ordered that previous parenting orders and injunctions be discharged. The mother was granted sole parental responsibility, and G was ordered to live with the mother. Specific arrangements were made for the father to spend time and communicate with G, including alternate weekends during school terms, half of school holidays, and on specific occasions such as Father's Day and G's birthday. The orders also detailed provisions for communication, collection and handover arrangements, and the exchange of information regarding G's schooling and medical care. Both parents were restrained from denigrating each other in G's presence or discussing the proceedings with him. The Independent Children's Lawyer was discharged, and all extant applications were dismissed.

Orders

Orders of the court

That all previous parenting orders and injunction in respect of the child G (“the child”) born … January, 2000 be discharged.

That the mother have sole parental responsibility for the child.

That the child live with the mother.

That subject to paragraphs (5) and (6) hereof, the father spend time and communicate with the child as follows :

(a) during school terms in each alternate week from the conclusion of school on Friday until the commencement of school the following Monday (or if Monday is a public holiday, Tuesday) commencing on 5 February, 2010 and thereafter recommencing on the first weekend in each school term;

(b) for one half of school holidays at times to be agreed and, failing agreement :

(i) the first half in 2011 and each alternate year thereafter; and

(ii) the second half in 2010 and each alternate year thereafter;

(d) if the child would not otherwise be with the father on the child’s birthday, for four hours on the child’s birthday at times to be agreed and failing agreement from 10:00 am. to 2:00 pm.;

(e) by telephone on each Tuesday and Thursday on which the child is not in the father’s care, the telephone call to be made by the child between 5:00 pm. and 6:30 pm. and to be facilitated by the mother;

(f) at such other times as are agreed between the parties.

If the child would not otherwise be with the mother on Mothers’ Day the child shall spend time with the mother from 9:00 am. to 5:00 pm. on Mothers’ Day.

If the child would not otherwise be with the mother on his birthday, the child shall spend time with the mother for four hours on his birthday at times to be agreed and failing agreement from 10:00 am. to 2:00 pm.

That save when changeovers occur at the commencement or conclusion of a school day, and subject to any agreement between the parties to the contrary, the father collect the child from the mother’s front gate at the commencement of a period of time with him and the mother collect the child from the father’s front gate at the conclusion of each such period.

That the mother keep the father advised of any change in the school at which the child is enrolled (the court noting that he is presently enrolled at P Primary School).

That the father be at liberty to attend events, activities and functions at the child’s school which are routinely attended by parents.

10.

That the father be at liberty to arrange with the principal of each school attended by the child to obtain, at his expense (if any) copies of the following :

(a) each school report for the child;

(b) each order form for a school photo of the child; and

and this order shall stand as authority to the principal to provide these items.

11.

That each of the parties keep the other advised of any significant illness or injury suffered by the child when in his or her care.

12.

That the mother advise the father in writing of the name of each specialist medical practitioner, psychologist, counsellor or like professional consulted by the child and authorise each such professional to discuss the child’s prognosis and treatment with the father PROVIDED THAT all decisions as to the medical or like professional to be consulted and the nature and extent of all interventions and treatment are the sole responsibility of the mother.

13.

That the mother and father each be and are by themselves, their servants and agents, restrained from :

(a) denigrating the other or allowing anyone else to denigrate the other in the presence or hearing of the child; and

(b) discussing the proceedings and the evidence in the proceedings in the presence of hearing of the child or allowing any other person to do so.

14.

That as soon as practicable the mother serve a sealed copy of these orders on the principal of P Primary School and thereafter on the principal of each school attended from time to time by the child.

15.

That the reasons for judgment herein may be made available to :

(a) the principal of each school attended by the child and, in his or her absolute discretion, any teacher, psychologist, counsellor or like professional working with the child through the school;

(b) any medical practitioner, psychologist, counsellor or like professional consulted by the child;

(c) to a member of a State or Federal police force or a protective worker investigating any subsequent allegation which relates to the child or to a party;

(d) any court or tribunal before which is listed any application which relates to a party or the child;

(e) Mr. S; and

(f) the Department of Human Services.

16.

That the independent children’s lawyer be discharged at the expiration of one month hereof or, in the event a Notice of Appeal is filed, upon determination of the Notice of Appeal.

17.

That all extant applications be otherwise dismissed.

18.

That these applications be removed from the List of matters awaiting finalisation.

19.

That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

20.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

Parents have an obligation to financially support their children. The father pays no periodic child support for G. His evidence was that there is no child support assessment in force. However, he agreed that a recent tax refund of about $3,500 had been diverted from him to the mother, which is indicative of arrears of child support accrued over some time. The mother is responsible for G’s financial support save for periods he is with his father. (d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :(i) either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; Both parents reported to Mr. S that G had settled well into the routine of spending Thursday to Sunday with his father each fortnight. Mr. S based his recommendation in the report on G’s stated wish to spend more time with his father and noted this could be achieved by extending the weekends to a block of four nights per fortnight, with minimal disruption to G’s current routine. He also recommended that a regular night in the alternate week could be added to reduce “the gap” each fortnight. The ICL submitted the court should be concerned that the father’s approach was to assert to the court, and to G, that authority figures lie. In this category the ICL put the father’s approach to Ms. H, the ICL, the DHS worker and the police. It was his submission that this was not good role modelling for G. I place weight on that submission. If G were to live primarily with his father, and spend minimal time with his mother, G would be exposed to an unrelentingly hostile view of his mother. The father’s attitude to his own violence and aggression and that of his mother means the court could have no confidence in the father’s capacity to model behaviour such as accepting responsibility for actions and responding calmly and effectively to conflict. G’s own bad behaviour will be rationalised and he may learn to use aggression, violence and dishonesty as his first responses to a problem. Mr. S’s evidence was that a child of G’s age does not have the tools to grasp what it would be like to live away from his mother for a lengthy period. He suggested the court needed to be cautious when considering G’s expressed wish to be with his father. When G saw Mr. S he had just spent a week with his father; the time was enjoyable and G was quite “swept up” in that context. The father was confident that G would not miss his mother or N if he moved to live with him and confident that the move would not impact negatively on G in any way. He said that “in spirit he ([G]) will be 100%”. When Mr. S’s evidence to the contrary was put to him he rejected it, and continued :I have said [to G] if the court says you come and live with me, won’t you miss your brother? He said “No, he’s got his mother”.