Foreman & Bradgate (No 2) - [2023] FedCFamC1F 1029

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Foreman & Bradgate (No 2) [2023] FedCFamC1F 1029

File number(s): PAC 2637 of 2021

Judgment of: BERMAN J

Date of judgment: 1 December 2023

Catchwords: FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where upon the conclusion of the trial, the matter was adjourned for 6 months to enable the father to engage in a therapeutic process – Where the father did not engage – Where final orders can now be contemplated – Where the father made an oral application acceding to the orders sought by the mother – Orders sought by the father for the provision of sending letters and gifts – Consideration of the frequency – Orders.

Division: Division 1 First Instance

Number of paragraphs: 40

Date of hearing: 23 November 2023

Place: Heard in Sydney, delivered in Adelaide

Counsel for the Applicant: Ms Hayward

Solicitor for the Applicant: Walter & Elliott Family Lawyers

Counsel for the Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Sperling

Solicitor for the Independent Children's Lawyer: Walkden Law and Mediation
ORDERS

PAC 2637 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FOREMAN

Applicant

AND:
MR BRADGATE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

1 DECEMBER 2023

THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.Ms Foreman (“the mother”) have sole parental responsibility for X born 2018 (“the child”), provided that the mother will advise Mr Bradgate (“the father”) in writing in respect of any long-term issues and provide her view and intention to make decisions in that regard.
3.The child live with the mother.
4.The child spend no physical time with the father.
5.The mother is permitted to relocate the primary residence of the child to within a 120 kilometre radius of Suburb B train station.
6.Until further order and pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained from:
(a)Approaching the child or mother or being within 100 metres of their place of residence, employment, day-care, school or extracurricular activity;
(b)Contacting or communicating with or attempting to communicate with the mother or the child by any means other than is provided by these orders; and
(c)Removing or attempting to remove the child from the care of the mother or the mother’s nominee.

7.The father be at liberty to send a card, letter and/or a gift to the child upon the following terms and conditions:
(a)That the frequency of any card, letter or gift is to be not more than six (6) occasions per year provided that two (2) of the occasions shall coincide with the child’s birthday and Christmas with the frequency of each occasion to be not less than two (2) calendar months;
(b)That any card, gift or communication shall be sent to the residence of the maternal grandparents in Suburb B or at such Post Office Box as may be nominated in…

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 Foreman & Bradgate (No 2)

Details

AGLC: Foreman & Bradgate (No 2) [2023] FedCFamC1F 1029
Case: [2023] FedCFamC1F 1029
Decision Date: 1 December 2023

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia involved a dispute between Ms Foreman, the mother, and Mr Bradgate, the father, regarding the custody and contact arrangements for their child, X, born in 2018. The court was asked to determine the living and spending time arrangements for the child, as well as the terms of contact between the child and the father. This included assessing the father's engagement in a therapeutic process, which was a condition set by the court for a six-month period.

The court had to decide whether the father had fulfilled the therapeutic requirements and whether the proposed orders sought by the mother were in the best interest of the child. Additionally, the court needed to consider the father's oral application, which conceded to the mother's orders, and the specific terms for any contact the father could have with the child, including the frequency of sending letters and gifts. The court had to balance the child's need for stability and safety against the father's right to maintain a relationship with the child.

In reaching its decision, the court found that the father had not engaged in the therapeutic process as required, thus the orders proposed by the mother were appropriate. The court also considered the father's oral application and determined that allowing contact under strict conditions was in the best interest of the child. The court set out detailed conditions for any contact between the father and the child, including the frequency and method of communication. The court's orders prioritised the safety and well-being of the child while also acknowledging the father's role in the child's life.

The final orders of the court included granting sole parental responsibility to the mother, with specific conditions for her to consult with the father on long-term issues. The child was to live with the mother and have no physical contact with the father. The court also restrained the father from approaching the child or the mother and from contacting them except as allowed by the orders. The father was permitted to send cards, letters, or gifts to the child under specific conditions, including the frequency and method of delivery. The court further directed both parents to refrain from making derogatory remarks about each other on social media and discharged the Independent Children's Lawyer.

Orders

Orders of the court

PAC 2637 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FOREMAN

Applicant

AND:

MR BRADGATE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

1 DECEMBER 2023

THE COURT ORDERS THAT:

1. All previous orders are discharged.

2. Ms Foreman (“the mother”) have sole parental responsibility for X born 2018 (“the child”), provided that the mother will advise Mr Bradgate (“the father”) in writing in respect of any long-term issues and provide her view and intention to make decisions in that regard.

3. The child live with the mother.

4. The child spend no physical time with the father.

5. The mother is permitted to relocate the primary residence of the child to within a 120 kilometre radius of Suburb B train station.

6. Until further order and pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained from:

(a) Approaching the child or mother or being within 100 metres of their place of residence, employment, day-care, school or extracurricular activity;

(b) Contacting or communicating with or attempting to communicate with the mother or the child by any means other than is provided by these orders; and

7. The father be at liberty to send a card, letter and/or a gift to the child upon the following terms and conditions:

(a) That the frequency of any card, letter or gift is to be not more than six (6) occasions per year provided that two (2) of the occasions shall coincide with the child’s birthday and Christmas with the frequency of each occasion to be not less than two (2) calendar months;

(b) That any card, gift or communication shall be sent to the residence of the maternal grandparents in Suburb B or at such Post Office Box as may be nominated in writing by the mother;

(c) That the mother is required to ensure that the child shall receive any letter or gift unless in her discretion she considers that the communication or gift is not child focussed and/or seeks to denigrate the mother, her partner or extended family noting that the exercise of the mother’s discretion is not to be exercised frivolously, vexatiously or capriciously.

8. Should the child request to communicate with the father, the mother will do all things necessary to facilitate the child having either FaceTime, video contact or communication by telephone with the father.

9. Each party is to refrain from making critical or derogatory remarks in relation to the other parent or a member of the parent’s family on electronic platforms such as, but not limited to, Facebook, WhatsApp, Instagram or other social media.

10. The appointment of the Independent Children’s Lawyer is discharged.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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File number(s):	PAC 2637 of 2021
Judgment of:	BERMAN J
Date of judgment:	1 December 2023
Catchwords:	FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where upon the conclusion of the trial, the matter was adjourned for 6 months to enable the father to engage in a therapeutic process – Where the father did not engage – Where final orders can now be contemplated – Where the father made an oral application acceding to the orders sought by the mother – Orders sought by the father for the provision of sending letters and gifts – Consideration of the frequency – Orders.
Division:	Division 1 First Instance
Number of paragraphs:	40
Date of hearing:	23 November 2023
Place:	Heard in Sydney, delivered in Adelaide
Counsel for the Applicant:	Ms Hayward
Solicitor for the Applicant:	Walter & Elliott Family Lawyers
Counsel for the Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr Sperling
Solicitor for the Independent Children's Lawyer:	Walkden Law and Mediation

PAC 2637 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FOREMAN Applicant
AND:	MR BRADGATE Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	1 DECEMBER 2023