Farmer and Johns - [2010] FamCA 1106

FAMILY COURT OF AUSTRALIA

FARMER & JOHNS

[2010] FamCA 1106

FAMILY LAW – CHILDREN – Parenting – Supervised contact where very poor view of mother held by father unjustifiably – Extreme violence denunciated

Family Law Act 1975 (Cth)

B and B (1993) FLC 92-357
Irvine and Irvine (1995) FLC 92-624
KMB and PRL and Child Representative (2005) FamCA 1202
Moose and Moose [2008] FamCAFC 108
S and Q (1990) FLC 92-159

APPLICANT:

Ms Farmer

RESPONDENT:

Mr Johns

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

12878

2007

DATE DELIVERED:

6 December 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

20, 21, 22 & 23 SEPTEMBER 2010; 9, 18, 19, 22, 24 NOVEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR HANDS

SOLICITOR FOR THE APPLICANT:

KORDELL LAWYERS

COUNSEL FOR THE RESPONDENT:

MR GLOVER

SOLICITOR FOR THE RESPONDENT:

CINQUE OAKLEY SENOR LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS SPEHR

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

HEINZ & PARTNERS

Orders

That all extant parenting orders are discharged.
That the children R born … June 1999 and L born … August 2002 live with the mother.
That pursuant to s 65L of the Family Law Act 1975 (Cth), the orders that follow and compliance with them shall be supervised by a family consultant for a period of 12 months from this date AND IT IS FURTHER REQUIRED that the family consultant give to the mother and the father such assistance as is reasonably requested by them in relation to compliance with, and the carrying out of, these orders.
That as soon as practicable hereafter, and by the direction of the family consultant, the mother bring the children to the registry of the Family Court of Australia for the family consultant to explain to them the terms of these orders.
That pursuant to s 68L(4) of the Act, the appointment of the Independent Children’s Lawyer continue until 31 December 2011.
That the father spend time with the children as follows:
(a)until 31 January 2011, for such periods and on such conditions as the T Children’s Contact Service are able to arrange for the father’s attendance under supervision;
(b)thereafter, until 31 August 2011 during each alternate weekend on either the Saturday or the Sunday for a period of up to four hours under the supervision of Ms A (or such other person as the parties agree) with the costs of such supervision but not any travel expenses being met as follows:
(i)as to one third by the mother; and
(ii)as to two thirds by the father,
and as to any travel expenses of Ms A by the father.
For the purposes of all handovers of the children, the mother shall deliver the children to Ms A at the commencement of each period under this sub-paragraph and Ms A shall return them to the mother at the conclusion of such period.
(c)thereafter, commencing two weeks after the last period referred to in sub-paragraph (b) hereof and provided the father…

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 Farmer and Johns

Details

AGLC: Farmer and Johns [2010] FamCA 80
Case: [2010] FamCA 1106
Decision Date: 6 December 2010

CaseChat Overview and Summary

In *Farmer and Johns*, heard before Cronin J, the court was tasked with determining parenting orders concerning two children, R and L. The dispute centred on the living arrangements, time spent with each parent, and decision-making responsibilities for the children.

The legal issues before the court included the discharge of existing parenting orders, the primary residence of the children, the supervision of contact between the father and the children, the allocation of decision-making authority regarding the children's education and health, and the father's participation in a parenting program. The court also considered the role of a family consultant in assisting with compliance and the continuation of an Independent Children's Lawyer.

Cronin J ordered that all extant parenting orders be discharged and that the children live with the mother. The court mandated supervision of compliance with the orders by a family consultant for 12 months, who was also to provide assistance to both parents. Specific arrangements were detailed for the father's time with the children, commencing with supervised contact through a contact service, progressing to supervised weekend time with a named supervisor, and eventually to unsupervised time during alternate weekends and school holidays. The mother was granted responsibility for decisions regarding the children's education, health, and extracurricular activities, with a requirement to inform the father in writing of any major long-term decisions. The father was ordered to attend a parenting program nominated by the Independent Children’s Lawyer. All proceedings between the parties were otherwise dismissed.

Orders

Orders of the court

That all extant parenting orders are discharged.

That the children R born … June 1999 and L born … August 2002 live with the mother.

That pursuant to s 65L of the Family Law Act 1975 (Cth), the orders that follow and compliance with them shall be supervised by a family consultant for a period of 12 months from this date AND IT IS FURTHER REQUIRED that the family consultant give to the mother and the father such assistance as is reasonably requested by them in relation to compliance with, and the carrying out of, these orders.

That as soon as practicable hereafter, and by the direction of the family consultant, the mother bring the children to the registry of the Family Court of Australia for the family consultant to explain to them the terms of these orders.

That pursuant to s 68L(4) of the Act, the appointment of the Independent Children’s Lawyer continue until 31 December 2011.

That the father spend time with the children as follows:

(a) until 31 January 2011, for such periods and on such conditions as the T Children’s Contact Service are able to arrange for the father’s attendance under supervision;

(b) thereafter, until 31 August 2011 during each alternate weekend on either the Saturday or the Sunday for a period of up to four hours under the supervision of Ms A (or such other person as the parties agree) with the costs of such supervision but not any travel expenses being met as follows:

(i) as to one third by the mother; and

(ii) as to two thirds by the father,

and as to any travel expenses of Ms A by the father.

For the purposes of all handovers of the children, the mother shall deliver the children to Ms A at the commencement of each period under this sub-paragraph and Ms A shall return them to the mother at the conclusion of such period.

(c) thereafter, commencing two weeks after the last period referred to in sub-paragraph (b) hereof and provided the father has diligently availed himself of the majority of the periods in sub-paragraph (b), in each alternate weekend from the conclusion of school on Friday in the school grounds of the school of the children until 6.00pm on the following Sunday whereupon the father shall return the children punctually to the mother at McDonalds at T or such other place as may be agreed;

(d) from the commencement of the 2012 school year, for one half of all school holiday periods by agreement and failing agreement, the first half; and

(e) from 6.00pm on 24 December 2011 until 3.00pm on 25 December 2011 and for a similar period in each odd-numbered year thereafter and from 3.00pm on 25 December 2012 to 6.00pm on 26 December 2012 and for a similar period in each even-numbered year thereafter.

That a copy of these reasons be provided to Ms A and any health professional working with either of the parties or the children.

That for the purposes of the time to be spent between the father and the children under the supervision of Ms A, save for the first of such periods, the father is at liberty to have his parents attend with him along with any appropriate pet.

That the mother have the responsibility for making decisions about:

(a) the education of the children;

(b) the health of the children;

(c) the extra-curricular sporting and cultural events of the children that do not clash with the time to be spent by the father pursuant to these orders.

10.

That the father attend a parenting programme nominated by the Independent Children’s Lawyer.

11.

Insofar as the mother makes any decision relating to a major long-term issue for either of the children, she shall advise the father upon making such decision, such advise being provided to the father in writing.

12.

That the mother have liberty to provide a copy of these orders to all school principals of the schools at which the children attend and all health professionals dealing with the children.

13.

That all material produced pursuant to any subpoena be returned to the recipient of that subpoena.

14.

That all proceedings are otherwise dismissed between the parties.

IT IS CERTIFIED:

15.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

16.

That 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 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.

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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