FARGO & LARK - [2011] FamCA 238

FAMILY COURT OF AUSTRALIA

FARGO & LARK

[2011] FamCA 238

FAMILY LAW - CHILDREN – High conflict - mother threatens to alienate child from herself and his siblings unless his relationship with the father is circumscribed - public policy

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4A) and 114

Ray and Anor & Males and Ors [2009] FamCA 219
Secretary of the Department of Health and Human Services & Ray and Ors [2010] FamCAFC 258
MRR & GR [2010] HCA 4

Bradshaw D, Brown T, Wendt S, Campbel A, McGinness E, Tinning B, Batagol B, Sifris A, Tyson D, Baker J and Arias P F - “The Effect of Family Violence on Post-Separation Parenting Arrangements Family Matters 2011” No. 86 – Australian Institute of Family Studies

APPLICANT:

Mr Fargo

RESPONDENT:

Ms Lark

FILE NUMBER:

LNC

301

2007

DATE DELIVERED:

8 April 2011

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

22, 24 & 25 February & 9 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Higgins

SOLICITOR FOR THE APPLICANT:

Bishops

COUNSEL FOR THE RESPONDENT:

Mr Williams

SOLICITOR FOR THE RESPONDENT:

Mr Williams

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mrs Mooney

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Legal Aid Commission

Orders

All previous parenting orders in respect of B born May 1999 (‘the child’) be discharged.
Parental Responsibility
Subject to these orders or any written agreement between the parties, the parties shall have shared parental responsibility when determining:-
(a)the child’s religion;
(b)the issue or re-issue of a passport for the child;
(c)changing the child’s school from Primary School 1 and/or High School 1;
(d)overseas travel of the child;
(e)changing the child’s primary place of residence from North/Western Tasmania; and
(f)any major elective surgery, psychological treatment and/or psychiatric treatment for the child.
BY CONSENT both parents are restrained from changing the primary place of residence of the child from North/West Tasmania without either the written consent of the other parent or an order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
Subject to these orders or any written agreement between the parties, the parties shall otherwise have individual parental responsibility for the child but shall inform the other parent of any proposed exercise of any significant aspect of parental responsibility if possible in advance otherwise as soon as is practicable.
Each parent shall advise the other of any medical procedure involving the child and each party is restrained from taking the child to a psychologist or psychiatrist without the other parties written consent, an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth) or on the recommendation of the child’s General Medical Practitioner after such practitioner has certified that he has read these orders and the reasons upon which they are based. Nothing in these orders shall operate to prevent the child from being referred to a school counsellor by his school teacher or school principal.
Each of the parents shall have…

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 FARGO & LARK

Details

AGLC: FARGO & LARK [2011] FamCA 238
Case: [2011] FamCA 238
Decision Date: 8 April 2011

CaseChat Overview and Summary

In the matter of FARGO & LARK, Benjamin J considered parenting orders concerning a child, B, born in May 1999. The dispute arose in a high-conflict family environment where the mother had allegedly threatened to alienate the child from herself and his siblings unless the father's relationship with B was circumscribed. The court's determination was informed by public policy considerations relevant to family law.

The court was required to determine the appropriate arrangements for B's parental responsibility, living arrangements, and the terms under which future parenting proceedings could be commenced. Key issues included the division of shared versus individual parental responsibility for significant decisions concerning B's welfare, such as education, medical treatment, and overseas travel. The court also had to address the practicalities of the child's living schedule and the communication protocols between the parents.

Benjamin J discharged previous parenting orders and established new arrangements. The court ordered shared parental responsibility for specific major decisions, while other aspects of parental responsibility were to be exercised individually, with an obligation to inform the other parent. The child was ordered to primarily live with the mother, with specific, detailed periods of time to be spent with the father, including alternate weekends and school holidays. The court also imposed significant restrictions on the parties' ability to commence further parenting proceedings without leave, and restrained them from discussing the proceedings or orders with the child. The court further directed that specific individuals and institutions be provided with copies of the orders and reasons.

Orders

Orders of the court

All previous parenting orders in respect of B born May 1999 (‘the child’) be discharged.

Parental Responsibility

Subject to these orders or any written agreement between the parties, the parties shall have shared parental responsibility when determining:-

(a) the child’s religion;

(b) the issue or re-issue of a passport for the child;

(d) overseas travel of the child;

(e) changing the child’s primary place of residence from North/Western Tasmania; and

(f) any major elective surgery, psychological treatment and/or psychiatric treatment for the child.

BY CONSENT both parents are restrained from changing the primary place of residence of the child from North/West Tasmania without either the written consent of the other parent or an order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).

Subject to these orders or any written agreement between the parties, the parties shall otherwise have individual parental responsibility for the child but shall inform the other parent of any proposed exercise of any significant aspect of parental responsibility if possible in advance otherwise as soon as is practicable.

Each parent shall advise the other of any medical procedure involving the child and each party is restrained from taking the child to a psychologist or psychiatrist without the other parties written consent, an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth) or on the recommendation of the child’s General Medical Practitioner after such practitioner has certified that he has read these orders and the reasons upon which they are based. Nothing in these orders shall operate to prevent the child from being referred to a school counsellor by his school teacher or school principal.

Each of the parents shall have parental responsibility to inspect medical records that are available or to make enquiries of doctors and teachers.

The parities shall sign all documents and do all things to enrol the child at High School 1 from 2012 onwards and both parties are restrained from changing the child’s enrolment at that High School and/or Primary School 1 without the written consent of the other party or an order of a court exercising jurisdiction under the Act.

The parents shall otherwise have several parental responsibility for the child, have regard to the provisions of s 61C of the Family Law Act 1975 (Cth).

Leave to commence proceedings

Subject to order 7, leave be given to the parties for the next three years to apply to Benjamin J in respect of:-

(a) any change of school which is not agreed in writing;

(b) any appointment for the child to see a psychologist or psychiatrist; and

Such leave to be limited to determining those questions which would generally be determined on the filing of an application and affidavit and returnable on short notice.

10.

Pursuant to the powers set out in Division 12A (not s 118) of the Family Law Act 1975 (Cth), the parties are restrained from commencing any parenting and/or enforcement proceedings without the leave of a court exercising jurisdiction under the Act.

Living Arrangements

11.

The child shall generally and primarily live with the mother.

12.

The child shall live with the father as follows:-

(a) During Christmas/New Year school holidays in 2011/2012 and each alternate year afterwards from after school on the last day of school term until 2.00pm on Christmas Day and then with the father from 2.00pm Boxing Day for two weeks.

(b) During Christmas/New Year school holidays in 2012/2013 and each alternate year afterwards from 2.00pm on Christmas Day until 2.00pm on Boxing Day and then for two weeks during the Christmas holidays commencing 8 January.

i. the last day of school term prior to Easter until 5.00pm Easter Sunday in 2012 and each alternate year thereafter; and

ii. from 5.00pm Easter Sunday to 5.00pm on the Sunday before commencement of the following school term in 2011 and each alternate year thereafter.

(d) In relation to the two mid year school holidays, the child shall live with the father from the conclusion of the last day of school until 10.00am on Saturday in the middle of the holiday period.

(e) During school term, the child shall live with the father each alternate weekend (from after Easter 2011, commencing second Friday after the commencement of each term) from after school Friday to the commencement of school Monday or the commencement of school Tuesday if the Monday is a pupil free day or a public holiday. As from the date of this order, the child shall spend the weekend commencing 8 April 2011 with the mother and the following weekend, commencing 15 April 2011 with the father.

(f) On Mother’s Day, if the child is not otherwise living with the mother, the child live with the mother from 10.00am on Mother’s Day and remain living with her for the remainder of that weekend, with the child to be delivered by the mother to his school on the following Monday morning.

(g) On Father’s Day, if the child is not otherwise living with the father, the child live with him from 5.00pm on the Saturday before Father’s Day until 5.00pm on the Father’s day Sunday, such return to be in accordance with the arrangements set out in these orders or as otherwise agreed in writing between the parties.

13.

All changeovers are to be at the child’s school if the school is open and if not at the home of Ms S or at such other place as agreed in writing between the parties. The parent is to drop the child off at least 15 minutes prior to the changeover time and depart the place of changeover at least 10 minutes before the changeover time.

Other orders

14.

Both parties will do all acts and things to authorise the child’s schools to provide each parent with information about the child including, but not limited to, school reports, school information routinely provided to parents, school newsletters and the child’s attendance record AND IT IS NOTED that each parent is entitled to such information.

15.

Both parents are restrained from discussing these orders and the parenting proceedings with the child.

16.

The father shall ensure that the child has an operating mobile telephone with him while the child is in his care.

17.

The mother and father be and are restrained from attending the child’s school except during the time that the child would otherwise be in their care on the previous night to the particular school day.

18.

The Independent Children’s Lawyer must provide within six (6) weeks from the date of these orders, a copy of the reasons and orders to:-

(a) the principal of Primary School 2;

(b) the principal of Primary School 1; and

AND IT IS DIRECTED that the principal of Primary School 2 is restrained from distributing the reasons to any other person or persons save and except to those dealing with any complaint made to the Department of Education in respect of his dealings with the child.

19.

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 the details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

20.

This matter be removed from the list of cases requiring determination.

21.

All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

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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