Froth & Schneider - [2011] FamCA 378

FAMILY COURT OF AUSTRALIA

FROTH & SCHNEIDER

[2011] FamCA 378

FAMILY LAW – CHILDREN – Whether there is an unacceptable risk of psychological harm – Whether there is an unacceptable risk of emotional harm.

Family Law Act 1975 (Cth) Sections 60CA, 60CC, 61DA

Kent & Shaw [2010] FamCA 587; Leighton & Carey [2010] FamCAFC 94;
Marvel & Marvel (No. 2) [2010] FamCAFC 101;

APPLICANT: FATHER

Mr Froth

RESPONDENT MOTHER:

Ms Schneider

FILE NUMBER:

BRC

5631

2007

DATE DELIVERED:

25 May 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Loughnan J

HEARING DATES:

11, 12 & 13 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT FATHER:

Mr Gunn (11^th & 12^th May 2011)

SOLICITOR FOR THE APPLICANT FATHER

Mr Hawkes

COUNSEL FOR THE RESPONDENT MOTHER

Mr McGregor

SOLICITOR FOR THE RESPONDENT MOTHER

Mr Subramanian

COUNSEL FOR THE INDEPENDENT CHILD LAWYER

Mr Slade-Jones

SOLICITOR FOR THE CHILD

Mr Grainger

Orders

1.All current parenting orders in respect of L, born … May 2005, are discharged.
2.The parties shall have equal shared parental responsibility for the child.
3.The child shall live with the father:
(a)During school terms from 6.30 pm Friday until 6.30 pm Sunday of each alternate weekend and from 6.30 pm each Wednesday to the commencement of school the next day;
(b)Unless the parties agree to the contrary the first of those weekends shall commence on 27 May 2011.
(c)For one half of each of the school holidays, being the first half in odd numbered years and the second half in even numbered years;
(d)When the child spends time with the father in the first half of a school holiday period the child will recommence living with the father on the first weekend following those holidays;
(e)When the child spends time with the father in the second half of a school holiday period the child will recommence living with the father on the second weekend following those holidays;
(f)If pursuant to (c) above the child is to be with the mother for the first half of the Christmas school holidays she shall nevertheless live with the father from 2.00 pm Christmas Eve to 2.00 pm Christmas Day.
(g)If the child would otherwise not be with the father on Father’s Day she shall spend between 9.00am and 5.00pm with the father on that day;
(h)If the child would otherwise not be with the father on the father’s birthday (…) and that is not a school day, she shall spend between 9.00 am and 5.00 pm with the father; and
(i)If the child would otherwise not be with the father on her birthday (… May) and that is not a school day, she shall spend between 9.00 am and 5.00 pm with the father.

4.Unless the parties otherwise agree, at all other times the child shall live with the mother. In addition:
(a)If pursuant to 3(c) above the child is to be with the father for the first half of the Christmas school holidays she shall nevertheless live…

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

AGLC: Froth & Schneider [2011] FamCA 378
Case: [2011] FamCA 378
Decision Date: 25 May 2011

CaseChat Overview and Summary

This matter concerned parenting orders made by Loughnan J in the Federal Circuit Court of Australia. The dispute involved the parents of L, born in May 2005, regarding the arrangements for their child following their separation.

The court was required to determine the appropriate parenting orders for L, specifically addressing issues of parental responsibility, the child's living arrangements, and the communication and information-sharing protocols between the parents. The court also considered the need for parental education and support in co-parenting.

Loughnan J ordered that all current parenting orders be discharged and that the parties have equal shared parental responsibility for L. The child was ordered to live with the father on alternate weekends and for a portion of each week, with specific provisions for school holidays, birthdays, and public holidays. The mother was to have the child at all other times, with similar provisions for holidays and special days. The orders also stipulated detailed arrangements for changeovers, communication between parents, and access to medical and educational information. Furthermore, the court directed both parents to enrol in parenting courses, with the Independent Children's Lawyer to identify suitable options. The appointment of the Independent Children's Lawyer was to be discharged after six months, and a Family Consultant was appointed to provide assistance with compliance for the same period. The court also attached a fact sheet detailing the obligations and potential consequences of contravening the orders.

Orders

Orders of the court

1. All current parenting orders in respect of L, born … May 2005, are discharged.

2. The parties shall have equal shared parental responsibility for the child.

3. The child shall live with the father:

(a) During school terms from 6.30 pm Friday until 6.30 pm Sunday of each alternate weekend and from 6.30 pm each Wednesday to the commencement of school the next day;

(b) Unless the parties agree to the contrary the first of those weekends shall commence on 27 May 2011.

(c) For one half of each of the school holidays, being the first half in odd numbered years and the second half in even numbered years;

(d) When the child spends time with the father in the first half of a school holiday period the child will recommence living with the father on the first weekend following those holidays;

(e) When the child spends time with the father in the second half of a school holiday period the child will recommence living with the father on the second weekend following those holidays;

(f) If pursuant to (c) above the child is to be with the mother for the first half of the Christmas school holidays she shall nevertheless live with the father from 2.00 pm Christmas Eve to 2.00 pm Christmas Day.

(g) If the child would otherwise not be with the father on Father’s Day she shall spend between 9.00am and 5.00pm with the father on that day;

(h) If the child would otherwise not be with the father on the father’s birthday (…) and that is not a school day, she shall spend between 9.00 am and 5.00 pm with the father; and

(i) If the child would otherwise not be with the father on her birthday (… May) and that is not a school day, she shall spend between 9.00 am and 5.00 pm with the father.

4. Unless the parties otherwise agree, at all other times the child shall live with the mother. In addition:

(a) If pursuant to 3(c) above the child is to be with the father for the first half of the Christmas school holidays she shall nevertheless live with the mother from 2.00 pm Christmas Eve to 2.00 pm Christmas Day;

(b) If the child would otherwise not be with the mother on Mother’s Day she shall spend between 9.00 am and 5.00 pm with the mother on that day; and

(c) If the child would otherwise not be with the mother on her birthday (… May) and that is not a school day, she shall spend between 9.00 am and 5.00 pm with the mother.

5. Unless changeover occurs at the commencement or conclusion of school or the parties otherwise agree, the child will pass between the parents by the parent who has the care of the child delivering her to the other parent at Location 1 at Brisbane Suburb 1.

6. In the event of a medical emergency, the parent who has the care of the child must immediately inform the other of the emergency.

7. The parents shall keep each other advised of their current land line and mobile phone numbers and their residential address and shall advise the other of any proposed change of address as soon as practicable and in any event in writing within 3 days of any such change.

8. Other than in the case of an emergency, whereupon the parties shall use the fastest means of communication possible, the parents shall communicate by communication book to be exchanged on each changeover with such communications to be confined to issues going to the welfare of the child.

9. The parents are at liberty to telephone the child twice weekly when the child is in the care of the other parent and shall facilitate the child having telephone communication with the other parent at her initiative, with reasonable frequency.

10. The parties are restrained from denigrating each other or allowing another person to denigrate the other party in the presence or hearing of the child.

11. The parties shall forthwith sign any authorities and give such approval as is necessary to ensure that they are each able to obtain medical reports and medical information from any doctor and hospital or any other person who provides the child with medical care or treatment and, at the cost of the parent seeking the information, all information available to parents from the child’s school.

12. The Court Requested that Family Consultant, Ms B (or the nominee of the Manager of Children’s Services at Brisbane) and the Independent Children’s Lawyer identify parenting and or post separation courses that would be of assistance to each of the parties and the ICL shall inform the parents in writing of that course or those courses as soon as practicable.

13. As soon as practicable, the parties are to enrol in any course or courses to which they are directed by the ICL, shall attend to the conclusion of that course or courses and shall provide to the ICL a copy of a certificate or letter confirming that attendance.

14. The Order for the appointment of the Independent Children’s Lawyer shall be discharged six (6) months from the date of this Order.

15. Pursuant to section 65L, for a period of six (6) months from the date of these orders, Family Consultant, Ms B or the nominee of the Manager of Children’s Services at Brisbane shall give such assistance to the parents as is reasonably requested by either of them in relation to compliance with, and carrying out these orders.

16. The parties are at liberty to restore these proceedings to the list within twenty one (21) days from the date of these orders, on short notice to each other, in relation to the form of the orders.

17. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the attached Fact Sheet.

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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