Fay and Turner and Anor - [2008] FMCAfam 1508

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAY & TURNER & ANOR

[2008] FMCAfam 1508

FAMILY LAW – Parenting orders – jurisdiction of the Court to make the orders sought – child under the protective supervision of the Department of Child Safety – interim orders made.

Family Law Act 1975, ss.4, 4A, 60B, 60CA, 60CC, 60CC(3), 60CC(3)(a)(b)(d)(e), 60CG, 61DA, 61DA(1), 64B, 65D, 65DAA, 65DAB

Applicant:

MR FAY

First Respondent:

MS TURNER

Second Respondent:

DEPARTMENT OF CHILD SAFETY

File Number:

BRC 8657 of 2008

Judgment of:

Slack FM

Hearing date:

23 October 2008

Date of Last Submission:

23 October 2008

Delivered at:

Brisbane

Delivered on:

24 October 2008

REPRESENTATION

Solicitors for the Applicant:

Wonderley & Hall

Solicitors for the First Respondent:

MacDonald Law

Counsel for the Second Respondent:

Mr Selfridge

Solicitors for the Second Respondent:

Crown Law

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

That all previous Orders and parenting plans be discharged.
That the Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and landline contact telephone number;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child, and this order will authorise any treating medical practitioner to release the child's medical information to the other parent.
That the parents authorise by this order, the school or day-care centres attended by the child to give each parent information about the child's educational progress and other related activities, and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent's cost).
That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
That the child is to live with, spend time with and/or communicate with the Mother and Father as agreed between the parents and if they fail to agree, then as follows.
That the child shall spend time with the Father:
(a)for the next six (6) weeks, each Monday and Friday from 10.00am until 1.00pm, with changeover for contact to occur at the [T] Contact Centre;
(b)for the next six (6) weeks thereafter, each Monday and Friday from 9.00am until 3.00pm with the changeover for contact to occur at the [T] Contact Centre;
(c)thereafter until further order, from 3.00pm Sunday until 3.00pm Monday in each week.
That otherwise, the child shall live with…

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.

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Details

Case: [2008] FMCAfam 1508
Decision Date: 24 October 2008

CaseChat Overview and Summary

In the case of Fay and Turner, the primary concern of the Family Court of Australia was to determine a parenting arrangement for the child of the parties. The court was tasked with resolving disputes regarding the child's residence, contact, and overall welfare, taking into account the best interests of the child. The court's decision was influenced by the need to provide stability and clarity for the child amidst the parents' disagreements.

The court had to address several key legal issues, including the establishment of a contact and residence schedule that would best serve the child's needs, the necessity of using a contact centre to facilitate safe and monitored exchanges, and the requirement for the parents to maintain respectful communication about each other. Additionally, the court considered the need for the parents to share essential information about the child's health, education, and overall well-being. The court had to balance the parents' rights and responsibilities with the paramount consideration of the child's welfare.

In reaching its decision, the court emphasised the importance of minimising conflict between the parents and ensuring that the child's exposure to such conflict is kept to a minimum. The court ordered a specific schedule for the child's time with each parent, including the use of a contact centre to facilitate safe exchanges. The court also mandated that the parents maintain respectful communication about each other and refrain from discussing the other parent's personal life in front of the child. Furthermore, the court required the parents to share information about the child's health, education, and other relevant matters, and to keep each other informed of any significant changes or issues. The court's orders were designed to provide a structured and supportive environment for the child, while also promoting cooperation between the parents.

The court's final orders included a detailed parenting plan that specified the child's residence and contact arrangements, the use of a contact centre for exchanges, and the parents' obligations to share information and maintain respectful communication. The court also mandated that the parents take steps to comply with the requirements of the contact centre and that the father would bear the costs associated with its use. The orders were intended to provide clarity and stability for the child and to facilitate a cooperative co-parenting relationship.

Orders

Orders of the court

THE COURT ORDERS UNTIL FURTHER ORDER:

That all previous Orders and parenting plans be discharged.

That the Mother and Father shall:

(a) keep the other parent informed at all times of their residential address and landline contact telephone number;

(b) keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;

(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child, and this order will authorise any treating medical practitioner to release the child's medical information to the other parent.

That the parents authorise by this order, the school or day-care centres attended by the child to give each parent information about the child's educational progress and other related activities, and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent's cost).

That during the time the child is with either parent, that parent shall:

(a) respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b) speak of the other parent respectfully;

(c) not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

That the child is to live with, spend time with and/or communicate with the Mother and Father as agreed between the parents and if they fail to agree, then as follows.

That the child shall spend time with the Father:

(a) for the next six (6) weeks, each Monday and Friday from 10.00am until 1.00pm, with changeover for contact to occur at the [T] Contact Centre;

(b) for the next six (6) weeks thereafter, each Monday and Friday from 9.00am until 3.00pm with the changeover for contact to occur at the [T] Contact Centre;

That otherwise, the child shall live with the Mother.

That except as otherwise ordered, the Father and Mother shall collect the child from and return the child to the [T] Contact Centre and the Father shall be responsible for the costs of the use of the centre.

That the Father and Mother shall forthwith take such steps including the signing of any documents for intake at the centre and comply with all of the requirements of the centre.

10.

That pursuant to Rule 15.09 of the

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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