Field and Story - [2018] FamCA 1066

FAMILY COURT OF AUSTRALIA

FIELD & STORY

[2018] FamCA 1066

FAMILY LAW – CHILDREN – dispute as to residence – whether mother’s mental health creates an unacceptable risk – orders for child to live with father and spend substantial and significant time with the mother.

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

Goode & Goode (2006) FLC 93-286
Donnell & Dovey (2010) FLC 93-428
Mulvany & Lane (2009) FLC 93-404
Hort & Verran [2009] FamCAFC 214
Parsons & Anor & Masson (2018) FLC 93-846
Mulvany & Lane (2009) FLC 93-404

APPLICANT:

Mr Field

RESPONDENT:

Ms Story

FILE NUMBER:

BRC

7461

2015

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Lismore

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

11, 12 & 13 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms A McDiarmid

SOLICITOR FOR THE APPLICANT:

Delaney & Delaney

COUNSEL FOR THE RESPONDENT:

Mr R Clutterbuck

SOLICITOR FOR THE RESPONDENT:

Milburns Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms K Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Mary-Ann Huth
Legal Aid Queensland

Orders

That all previous parenting orders be discharged from 19 December 2018.
That the parents have equal shared parental responsibility for decisions regarding the long term care, welfare and development of the child, X born …2013 (“the child”).
That each parent have responsibility for decisions regarding the day to day care of the child whilst the child is in their respective care.
That the child shall spend time and communicate with each of the parents as may be agreed between the parents, but failing agreement:
(a) until the child commences his preparatory school year in 2019:
(i)with the mother for a week commencing 19 December 2018 (subject to Order 5(e) relating to Christmas arrangements);
(ii)with the mother from 3.00pm Thursday, 3 January 2019 to 4.00pm Sunday, 6 January 2019;
(iii)with the mother for a week commencing 13 January 2019; and
(iv)at all other times with the father.
(b) Once the child commences school in January 2019:
(i)during school terms in a two (2) week cycle with the mother from after school Wednesday to before school Friday in the first week, and from after school Thursday to before school Monday in the second week, and with the father the balance of the time;
(ii)For the school holidays (other than the Christmas school holidays in 2019/2020), with the mother for the first half in even numbered years, and the second half in odd numbered years, and with the father for the first half in odd numbered years and the second half in even numbered years; and
(iii)For the end of term four (4) Christmas school holidays in 2019/2020, with the father for the period concluding on 26 December 2019; then with the mother for two weeks commencing 26 December 2019 with the balance of the time from 9 January 2020 to be shared equally but on the basis that the child return to the father on the Friday preceding the beginning of the school year.
That…

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 Field and Story

Details

AGLC: Field and Story [2018] FamCA 1066
Case: [2018] FamCA 1066
Decision Date: 14 December 2018

CaseChat Overview and Summary

This matter concerned parenting orders made by Baumann J in relation to the child, X, born in 2013. The proceedings involved the parents of X, whose specific names are not provided in the text. The dispute centred on the arrangements for the child's care, welfare, and development, as well as specific orders concerning frozen embryos.

The court was required to determine the extent of parental responsibility for long-term decisions regarding the child's care, welfare, and development, and to establish a detailed schedule for the child's time with each parent, including provisions for school terms, school holidays, and special occasions. Further issues included the facilitation of communication between the child and the non-resident parent, arrangements for changeovers, and the exchange of personal and emergency information. The court also addressed the parents' obligations regarding the child's presence during discussions of proceedings and the denigration of either parent, and made orders concerning the mother's engagement with her treating psychiatrist and general medical practitioner, including the provision of reports to the father. Finally, the court considered the disposition of frozen embryos held in storage.

Baumann J discharged previous parenting orders and made new orders by consent. The court established equal shared parental responsibility for long-term decisions concerning the child, with each parent responsible for day-to-day care decisions when the child is with them. A comprehensive schedule for the child's time with each parent was set out, commencing from 19 December 2018 and continuing through school terms and holidays, with specific arrangements for Christmas. The orders also included provisions for the child to communicate with the non-resident parent, designated a location for changeovers, and mandated the exchange of contact and emergency information. Crucially, the court ordered the mother to irrevocably authorise her treating psychiatrist and psychologist to provide six-monthly reports to the father on her treatment and functioning, and to attend regular mental health reviews with her general practitioner, providing evidence of attendance to the father. The court also ordered the mother to transfer all rights and interests in frozen embryos to the father, who would then be solely responsible for all associated costs. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

That all previous parenting orders be discharged from 19 December 2018.

That the parents have equal shared parental responsibility for decisions regarding the long term care, welfare and development of the child, X born …2013 (“the child”).

That each parent have responsibility for decisions regarding the day to day care of the child whilst the child is in their respective care.

That the child shall spend time and communicate with each of the parents as may be agreed between the parents, but failing agreement:

(a) until the child commences his preparatory school year in 2019:

(i) with the mother for a week commencing 19 December 2018 (subject to Order 5(e) relating to Christmas arrangements);

(ii) with the mother from 3.00pm Thursday, 3 January 2019 to 4.00pm Sunday, 6 January 2019;

(iii) with the mother for a week commencing 13 January 2019; and

(iv) at all other times with the father.

(b) Once the child commences school in January 2019:

(i) during school terms in a two (2) week cycle with the mother from after school Wednesday to before school Friday in the first week, and from after school Thursday to before school Monday in the second week, and with the father the balance of the time;

(ii) For the school holidays (other than the Christmas school holidays in 2019/2020), with the mother for the first half in even numbered years, and the second half in odd numbered years, and with the father for the first half in odd numbered years and the second half in even numbered years; and

(iii) For the end of term four (4) Christmas school holidays in 2019/2020, with the father for the period concluding on 26 December 2019; then with the mother for two weeks commencing 26 December 2019 with the balance of the time from 9 January 2020 to be shared equally but on the basis that the child return to the father on the Friday preceding the beginning of the school year.

That the arrangements for time be suspended for special days and the child shall spend time with the parents for special occasions as follows and from the commencement of this Order:

(a) On the child’s birthday, with the parent who does not have his care on that day from after school/daycare to 6.00pm if it is a school day or from 12 noon until 5.00pm if it is a non-school day;

(b) On Mother’s Day with the mother from 9.00am to 5.00pm on that day;

(d) If the child is not with his father or mother on their birthday, from after school to 6.00pm if it is a school day, or from 9.00am to 5.00pm if it is a non-school day; and

(e) For Christmas:

(i) with the mother from 9.00am Christmas Eve until 9.00am Christmas Day in odd numbered years and from 9.00am Christmas Day to 9.00am Boxing day in even numbered years; and

(ii) with the father from 9.00am Christmas Eve until 9.00am Christmas Day in even numbered years and from 9.00am Christmas Day to 9.00am Boxing day in odd numbered years.

That the parents facilitate the child telephoning or video calling the parent with whom he is not living with at all reasonable times he may request, with the parents to ensure that the calls occur at least every two (2) days.

That for the purpose of changeovers which do not take place at school or daycare, changeovers shall occur at McDonalds B Town.

That the parents shall keep each other informed of their residential address, email address, mobile and landline telephone numbers and any changes to those details within forty eight (48) hours of such change.

That the parents shall keep each other informed of any emergency regarding the child as soon as reasonably practicable.

10.

That this Order authorises the parents to obtain (at their own expense) any information or documentation about the child from his school, medical and other health practitioners, or extra-curricular activity providers that would normally be available to parents.

11.

That the parents shall ensure that they do not:

(a) denigrate the other parent or members of that parent’s family in the presence or hearing of the child, or allow him to be present or within hearing if others are doing so;

(b) discuss these proceedings or the issues raised in these proceedings with the child, or allow him to be present if others are doing so; and

12.

That the parents each be at liberty to attend the child’s daycare, school or extra-curricular activities for the purposes of activities which would normally be attended by parents.

Medical reports and attendance upon practitioners

13.

That the mother shall engage with her psychiatrist, Dr C, or any psychiatrist who replaces Dr C as her treating psychiatrist (“the treating psychiatrist”) and undertake such treatment as is recommended and attend appointments with such frequency as is recommended by the treating psychiatrist provided that if the treating psychiatrist recommends that the management of the mother’s condition be undertaken by a psychologist, then the mother shall attend such appointments, as recommended.

14.

That the mother shall irrevocably authorise and direct her treating psychiatrist or psychologist to provide the father on a six (6) monthly basis a report as to the mother’s treatment and level of functioning and keep the father informed of any change in her treating psychiatrist and/or psychologist.

15.

That the mother shall attend upon her general medical practitioner every two (2) months for mental health review and provide to the father evidence of such attendance.

16.

That the Independent Children’s Lawyer be discharged.

THE COURT ORDERS BY CONSENT:

Embryos

17.

That the mother forthwith do all acts and things and sign all documents necessary to transfer to the father any right or interest she may have in the frozen embryos held in storage with the D Group and to notify the said fertility centre that with effect from the date of these Orders the father shall be the sole owner of the said embryos.

18.

That with effect from the date of these Orders, the father is to be solely responsible for all costs associated with the embryos, including but not limited to costs associated with their storage, transportation, renewal, use or disposal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

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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