GARRA-MARSH & GARRA-MARSH - [2012] FMCAfam 277

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARRA-MARSH & GARRA-MARSH

[2012] FMCAfam 277

FAMILY LAW – Children – parenting – interim orders – parental responsibility – equal shared parental responsibility – sole parental responsibility – best interests of the child – whether appropriate to apply the presumption to apply presumption that it is in child’s best interests for the parents to have equal shared parental responsibility when making an interim order.

FAMILY LAW – Children – intractable conflict between parents – independent representation of child’s interests – Independent Children’s Lawyer.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 62G, 68L

Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant:

MR GARRA-MARSH

Respondent:

MS GARRA-MARSH

File Number:

SYC 1541 of 2009

Judgment of:

Scarlett FM

Hearing date:

14 March 2012

Date of Last Submission:

14 March 2012

Delivered at:

Sydney

Delivered on:

16 March 2012

REPRESENTATION

Solicitor for the Applicant:

Ms Ede

Solicitors for the Applicant:

Abrams Turner Whelan Family Lawyers

Counsel for the Respondent:

The Respondent appeared in person

Solicitors for the Respondent:

No solicitor on the record

ORDERS

UNTIL FURTHER ORDER

The child X (known as “X”) born (omitted) 2007 is to live with the Respondent Mother.
The Applicant Father is to spend time with the child (omitted) for a period of two (2) hours between the hours of 10:00am and 12 noon on the following occasions whilst he is visiting Australia:
(a)Sunday 18 March 2012;
(b)Wednesday 21 March 2012;
(c)Sunday 25 March 2012; and
(d)Wednesday 28 March 2012.
The Father may telephone the child for a period of ten (10) minutes on the following occasions:
(a)Father’s Day;
(b)The child’s birthday; and
(c)The Father’s birthday.
For the purposes of Order (2) above the Mother or another adult nominated by the Mother is to be present for the duration of the time that the Father spends with the child.
The Mother is to nominate the venue for the Father to spend time with the child as provided by Order (2) above and advise the Father by telephone or text of this venue within twenty-four (24) hours of the date of these Orders.
The Father is restrained by injunction from using or administering to himself any illicit or non-prescribed drug during or for twelve (12) hours before spending time with the child as prescribed by Order (2) above.
Neither party is to abuse, criticise or denigrate the other party in the presence or hearing of the child X or permit any third party to do so.
The interests of the child X (known as “X”) born (omitted) 2007 are to be independently represented by a lawyer and to this end Legal Aid New South Wales is requested to arrange such representation under the provisions of section 68L of the Family Law Act 1975.
The parties are to forward to Legal Aid New South Wales for the use of the Independent Children’s Lawyer when appointed copies of…

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: GARRA-MARSH & GARRA-MARSH [2012] FMCAfam 277
Case: [2012] FMCAfam 277
Decision Date: 16 March 2012

CaseChat Overview and Summary

The case involves GARRA-MARSH and GARRA-MARSH, where the court addressed interim parenting arrangements for a child named X born in 2007. The father sought to challenge the presumption in Family Law that it is in a child’s best interests to have equal shared parental responsibility. The mother, in contrast, sought to maintain the current arrangement where the child lives with her and the father has limited visitation rights.

The legal issues centred on whether the court should apply the presumption of equal shared parental responsibility when making interim orders, considering the intractable conflict between the parents. The court was also tasked with determining the best interests of the child in the context of the parents' dispute and whether independent representation of the child’s interests by an Independent Children's Lawyer was necessary.

The court found that the intractable conflict between the parents made it inappropriate to apply the presumption of equal shared parental responsibility in interim orders. The court emphasised the need for the child's interests to be independently represented due to the high level of conflict. The court ordered that the child should live with the mother, while the father would have limited supervised visitation and telephone contact on specific days. The court also imposed conditions on the father's drug use and behaviour around the child. Furthermore, the court mandated that the child's interests be represented by an Independent Children’s Lawyer and required the parents to provide relevant documents and attend a Family Consultant’s report.

The court issued orders for the child to live with the mother, with the father having limited visitation and contact under specific conditions. The court also required the appointment of an Independent Children's Lawyer to represent the child's interests and mandated that the parents cooperate with this process. The case was adjourned for further mention, and the father was required to file affidavits related to financial agreements by a specified date.

Orders

Orders of the court

UNTIL FURTHER ORDER

The child X (known as “X”) born (omitted) 2007 is to live with the Respondent Mother.

The Applicant Father is to spend time with the child (omitted) for a period of two (2) hours between the hours of 10:00am and 12 noon on the following occasions whilst he is visiting Australia:

(a) Sunday 18 March 2012;

(b) Wednesday 21 March 2012;

(d) Wednesday 28 March 2012.

The Father may telephone the child for a period of ten (10) minutes on the following occasions:

(a) Father’s Day;

(b) The child’s birthday; and

For the purposes of Order (2) above the Mother or another adult nominated by the Mother is to be present for the duration of the time that the Father spends with the child.

The Mother is to nominate the venue for the Father to spend time with the child as provided by Order (2) above and advise the Father by telephone or text of this venue within twenty-four (24) hours of the date of these Orders.

The Father is restrained by injunction from using or administering to himself any illicit or non-prescribed drug during or for twelve (12) hours before spending time with the child as prescribed by Order (2) above.

Neither party is to abuse, criticise or denigrate the other party in the presence or hearing of the child X or permit any third party to do so.

The interests of the child X (known as “X”) born (omitted) 2007 are to be independently represented by a lawyer and to this end Legal Aid New South Wales is requested to arrange such representation under the provisions of section 68L of the Family Law Act 1975.

The parties are to forward to Legal Aid New South Wales for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits, court orders and all other relevant documents within seven (7) days.

10.

The parties are to attend upon a Family Consultant at a time to be nominated for the purpose of preparing a report under the provisions of section 62G of the Family Law Act 1975 on all matters relevant to the care, welfare and development of the child X, to include the child’s relationships with her parents and other persons of significance to her.

11.

The interim hearing on 23 March 2012 is vacated.

12.

The Applicant Father is to file and serve any affidavit upon which he seeks to rely in relation to the application of the Mother’s application to vary or set aside the binding financial agreement made between the parties on 17 April 2009 and the Child Support Agreement made between the parties on 17 April 2009 by 23 March 2012.

13.

The Application is adjourned to 29 March 2012 for further mention at 10:00 am.

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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