Fulton and Packer (No 2) - [2015] FamCA 846

FAMILY COURT OF AUSTRALIA

FULTON & PACKER (NO 2)

[2015] FamCA 846

FAMILY LAW – ORDERS – Contravention – Parenting – Best Interests – Where the mother was found to have contravened final parenting Orders made in July 2013 without reasonable excuse – Where the parties make submissions in relation to penalty and outcome – Order that the mother complete a post-separation parenting orders program – Variation of final Orders.

Family Law Act 1975 (Cth)

Dobbs & Brayson [2007] FamCA 1261
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655

APPLICANT:

Mr Fulton

RESPONDENT:

Ms Packer

FILE NUMBER:

LEC

575

2007

DATE DELIVERED:

12 October 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

7 July 2015

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Ehlers

SOLICITOR FOR THE RESPONDENT:

Armstrong Kutz Lawyers

Orders

That pursuant to the provisions of s 70NEB(1)(a)(i) of the Family Law Act 1975 (Cth) (“the Act”) the mother shall attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs.
That the mother shall be personally responsible to access details of such programs through a Family Relationship Centre in her residential proximity and for making contact with a provider of such programs, enrolling in, attending and completing such a program.
That the mother shall complete such a post-separation parenting orders program within six (6) months of the date of these Orders and provide evidence in writing of the completion of such a program to the Court and the father as soon as she has completed the program.
That pursuant to s 70NBA of the Act the parenting Order of Justice Kent of 29 July 2013 relating to the child, B born … 2003, is varied by deleting paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 and by replacing those paragraphs with the following paragraphs:
(i)That in accordance with the child’s views, the child shall spend time with the father and communicate with him as and when the child determines.
(ii)That the mother shall facilitate the child spending time with the father and communicating with him as the child requests from time to time.
(iii)That the father may communicate with the child by sending him a written letter, card and/or present to the postal address provided by the mother, for the child’s birthday and for Easter and/or Christmas each year.
(iv)That the mother shall keep the father informed of a postal address to which he can send letters, cards and/or presents in accordance with the previous paragraph.
(v)That the mother shall write to the father at six monthly intervals advising him of the child’s development, progress and educational performance and she shall keep the father informed as to the school the child is attending at any time with the father to be entitled to obtain from any such school, at his own cost, if any, copies of reports and other information that the school…

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 Fulton and Packer (No 2)

Details

AGLC: Fulton and Packer (No 2) [2015] FamCA 846
Case: [2015] FamCA 846
Decision Date: 12 October 2015

CaseChat Overview and Summary

In *Fulton and Packer (No 2)*, Forrest J considered an application to vary existing parenting orders concerning a child, B. The dispute centred on the mother's compliance with previous orders and the father's ability to maintain a relationship with the child.

The court was required to determine whether to vary the existing parenting orders and, if so, on what terms. Specifically, the court had to consider the child's views regarding contact with the father and the mother's role in facilitating that contact. The court also had to consider the appropriateness of requiring the mother to attend a post-separation parenting program.

Forrest J applied the principles of the *Family Law Act 1975* (Cth), focusing on the best interests of the child. The court found it necessary to vary the previous orders to reflect the child's stated wishes for contact with the father, which were to be determined by the child. The mother was ordered to facilitate this contact and to keep the father informed of the child's development and schooling. Additionally, the mother was ordered to attend and complete a post-separation parenting program within six months, demonstrating her responsibility in accessing and completing such a program.

The court ordered that the mother attend and complete a post-separation parenting program within six months and provide proof of completion. The parenting order of Justice Kent dated 29 July 2013 was varied to allow the child to spend time with and communicate with the father as the child determines, with the mother to facilitate this. The father was granted limited communication rights, including sending gifts for birthdays and holidays, and was to be kept informed of the child's schooling, with the right to obtain school reports at his own cost. Approval was also given for the father to show a copy of the order to the child's school.

Orders

Orders of the court

That pursuant to the provisions of s 70NEB(1)(a)(i) of the Family Law Act 1975 (Cth) (“the Act”) the mother shall attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs.

That the mother shall be personally responsible to access details of such programs through a Family Relationship Centre in her residential proximity and for making contact with a provider of such programs, enrolling in, attending and completing such a program.

That the mother shall complete such a post-separation parenting orders program within six (6) months of the date of these Orders and provide evidence in writing of the completion of such a program to the Court and the father as soon as she has completed the program.

That pursuant to s 70NBA of the Act the parenting Order of Justice Kent of 29 July 2013 relating to the child, B born … 2003, is varied by deleting paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 and by replacing those paragraphs with the following paragraphs:

(i) That in accordance with the child’s views, the child shall spend time with the father and communicate with him as and when the child determines.

(ii) That the mother shall facilitate the child spending time with the father and communicating with him as the child requests from time to time.

(iii) That the father may communicate with the child by sending him a written letter, card and/or present to the postal address provided by the mother, for the child’s birthday and for Easter and/or Christmas each year.

(iv) That the mother shall keep the father informed of a postal address to which he can send letters, cards and/or presents in accordance with the previous paragraph.

(v) That the mother shall write to the father at six monthly intervals advising him of the child’s development, progress and educational performance and she shall keep the father informed as to the school the child is attending at any time with the father to be entitled to obtain from any such school, at his own cost, if any, copies of reports and other information that the school usually supplies to parents of its students.

(vi) That approval is given, pursuant to s 121(9)(g) of the Act, for the father to show a copy of this Order to any school the child attends.

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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