Farnsworth and Latta - [2011] FMCAfam 1492

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARNSWORTH & LATTA

[2011] FMCAfam 1492

FAMILY LAW – Children – parenting – interim orders – best interests of the child – mental health issues – whether mother’s time spent with the child should be supervised – parental responsibility – equal shared parental responsibility – whether equal time with each parent in child’s best interests – whether substantial and significant time with each parent in child’s best interests.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

In the Marriage of Bieganski (1993) 16 Fam LR 353
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
M v M (1988) 12 Fam LR 606; FLC 91-979
Mallahan & Mallahan [2010] FamCA 631

Applicant:

MR FARNSWORTH

Respondent:

MS LATTA

File Number:

SYC 5255 of 2010

Judgment of:

Scarlett FM

Hearing date:

19 December 2011

Date of Last Submission:

19 December 2011

Delivered at:

Sydney

Delivered on:

22 December 2011

REPRESENTATION

Solicitor for the Applicant:

Ms Atalla

Solicitors for the Applicant:

Antwan Lawyers

Solicitor for the First Respondent:

Ms Smith

Solicitors for the First Respondent:

Legal Aid NSW

Independent Children’s Lawyer:

Mr Cumming

Solicitors for the Independent Children’s Lawyer:

Hamish Cumming Family Lawyers

ORDERS

UNTIL FURTHER ORDER

All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2001.
The Father is to have sole parental responsibility for making decisions about the day to day care welfare and development of the child during the time when she is in his care.
The Mother is to have sole parental responsibility for making decisions about the day to day care, welfare and development of the child during the time when she is in the Mother’s care.
The child X is to live with the Father.
The child X is to spend time with the Mother:
(a)From 9:00am to 5:00pm on the second Sunday of each month commencing on Sunday 8 January 2012; and
(b)From 9:00am on Tuesday 17 January to 5:00pm on Friday 20 January 2012.
The Mother’s time with the child X in accordance with Order 6 above is to be supervised by the maternal grandparents Mrs Latta and Mr Latta or either of them or by the Mother’s brother.
The Mother’s time with the child is conditional upon the Mother’s compliance with any Community Treatment Order placed upon her under the provisions of the Mental Health Act 2007 (NSW) or any treatment plan and to this end the mother must forthwith authorise the (omitted) and any other medical practitioner or provider upon whom she may attend for the purposes of her mental health to advise the Father should he so request of her compliance or non-compliance with her treatment.
The Father must forthwith authorise any school which X shall attend to provide to the Mother at her expense copies of any school reports, assessments, newsletters, information about school photographs and any other documents usually provided to parents…

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 Farnsworth and Latta

Details

AGLC: Farnsworth and Latta [2011] FMCAfam 1492
Case: [2011] FMCAfam 1492
Decision Date: 22 December 2011

CaseChat Overview and Summary

The matter of Farnsworth and Latta was before the Family Court, involving a dispute between the father and the mother concerning the care and parenting arrangements for their child, X, born in 2001. The father sought changes to the existing parenting orders, primarily focusing on the allocation of parental responsibilities and the child's living arrangements.

The court had to decide several key legal issues, including whether the existing parenting orders should be discharged and replaced with new ones, the allocation of shared parental responsibilities between the father and the mother, and the specific arrangements for the child's living arrangements and time spent with each parent. The court also had to consider the mother's mental health and its impact on her ability to care for the child, as well as the need for supervised visitation.

The court determined that the existing parenting orders should be discharged and replaced with new ones that provide for equal shared parental responsibility between the father and the mother. The father was granted sole responsibility for making day-to-day decisions about the child's care, welfare, and development during the periods when the child is in his care, while the mother was granted the same responsibility when the child is in her care. The court ordered that the child live with the father but spend specified times with the mother, with her visits being supervised by either the maternal grandparents or the mother's brother. Additionally, the mother's visitation was conditional upon her compliance with any mental health treatment orders and the father's right to be informed of her compliance. The court also required the parents to attend a Family Consultant for the preparation of a Family Report regarding the child's care, welfare, and development. The case was scheduled for a final hearing from 9 to 11 October 2012.

Orders

Orders of the court

UNTIL FURTHER ORDER

All earlier parenting Orders are discharged.

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2001.

The Father is to have sole parental responsibility for making decisions about the day to day care welfare and development of the child during the time when she is in his care.

The Mother is to have sole parental responsibility for making decisions about the day to day care, welfare and development of the child during the time when she is in the Mother’s care.

The child X is to live with the Father.

The child X is to spend time with the Mother:

(a) From 9:00am to 5:00pm on the second Sunday of each month commencing on Sunday 8 January 2012; and

(b) From 9:00am on Tuesday 17 January to 5:00pm on Friday 20 January 2012.

The Mother’s time with the child X in accordance with Order 6 above is to be supervised by the maternal grandparents Mrs Latta and Mr Latta or either of them or by the Mother’s brother.

The Mother’s time with the child is conditional upon the Mother’s compliance with any Community Treatment Order placed upon her under the provisions of the Mental Health Act 2007 (NSW) or any treatment plan and to this end the mother must forthwith authorise the (omitted) and any other medical practitioner or provider upon whom she may attend for the purposes of her mental health to advise the Father should he so request of her compliance or non-compliance with her treatment.

The Father must forthwith authorise any school which X shall attend to provide to the Mother at her expense copies of any school reports, assessments, newsletters, information about school photographs and any other documents usually provided to parents of children attending that school.

10.

The Applicant Father and the Respondent Mother are to attend upon a Family Consultant at such time and place as they may be advised for the purpose of interviews for the preparation of a Family Report under the provisions of s.62G of the Family Law Act 1975 about matters relating to the care, welfare and development of the child X.

AND THE COURT NOTES THAT

The Application is listed for final hearing from 9 to 11 October 2012.

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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