Garra-Marsh & Garra-Marsh (No.2) - [2012] FMCAfam 1135

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARRA-MARSH & GARRA-MARSH (NO.2)

[2012] FMCAfam 1135

FAMILY LAW – Children – parenting orders – final orders – parental responsibility – equal shared parental responsibility – sole parental responsibility – child aged nearly five years living with mother – where father discontinued his application for parenting orders – where father did not participate in preparation of Family Report – whether the mother should be required to inform the father about major long term decisions in relation to the child – whether the mother should be required to forward gifts and letters from the father to the child – best interests of the child – where mother opposed to the father spending time with the child or having any communication with her.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 68L

Garra-Marsh & Garra-Marsh [2012] FMCAfam 277
Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant:

MR GARRA-MARSH

Respondent:

MS GARRA-MARSH

File Number:

SYC 1541 of 2009

Judgment of:

Scarlett FM

Hearing date:

13 August 2012

Date of Last Submission:

13 August 2012

Delivered at:

Sydney

Delivered on:

24 October 2012

REPRESENTATION

Solicitor for the Applicant:

Ms Ede

Solicitors for the Applicant:

Abrams Turner Whelan

Counsel for the Respondent:

The First Respondent appeared in person

Solicitors for the Respondent:

No solicitor on the record

Independent Children’s Lawyer

Ms Finn

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

All earlier parenting Orders are discharged.
The Respondent mother is to have sole parental responsibility for the child [X] born [in] 2007.
The child [X] is to spend such time and have such telephone and/or Skype communication with the Applicant Father as is agreed between the parties from time to time.
The Mother is to provide the Father with a Post Office Box address to which he can send letters and/or gifts to the child, and the Mother is to check that Post Office Box no less frequently than once each month and around the time of Christmas and the child’s birthday.
Any letters that the Father sends to the child are not to contain:
(a)any denigrating comments in relation to the Mother or the maternal family;
(b)any suggestion that the Father will spend time with her or communicate with her via telephone or Skype unless such time or communication has been agreed between the parties.
The Mother is to ensure that the child receives any letters and/or gifts from the Father sent via Post.
The Mother is to email the Father at such email address as is supplied to him in writing from time to time and in the absence of such address to [email omitted] to inform the Father about major long term decisions she makes in relation to the child, including but not limited to those dealing with the issues set out below, within fourteen (14) days of such decisions being made:
(a)Decisions regarding the child’s long term health and medical needs;
(b)Decisions regarding…

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

Case: [2012] FMCAfam 1135
Decision Date: 24 October 2012

CaseChat Overview and Summary

Garra-Marsh & Garra-Marsh (No.2) involved a dispute between the parents of a child born in 2007, with the father seeking to overturn sole parental responsibility held by the mother. The Family Court of Australia was tasked with determining the legal issues regarding parental responsibility, contact arrangements, and communication protocols between the parents.

The primary legal issues were the allocation of parental responsibility and the terms of contact between the parents. The court had to determine whether the mother should retain sole parental responsibility, or if joint responsibility should be granted, and establish the parameters for the father's contact with the child, including communication methods and restrictions on content.

The court concluded that sole parental responsibility should remain with the mother, acknowledging her role in the child's daily care and upbringing. However, the court allowed the father to have contact with the child, subject to specific terms designed to protect the child from exposure to negative influences and to ensure open communication between the parents regarding significant decisions affecting the child. The court also mandated certain communication protocols, including restrictions on the content of correspondence and requirements for the mother to inform the father of major decisions regarding the child’s health, education, and religious practices.

The orders issued by the court reflect a balanced approach, prioritizing the child's best interests while allowing for meaningful involvement from both parents. The court's decision to maintain sole parental responsibility with the mother while setting clear guidelines for the father's engagement aimed to provide stability and protection for the child.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Respondent mother is to have sole parental responsibility for the child [X] born [in] 2007.

The child [X] is to spend such time and have such telephone and/or Skype communication with the Applicant Father as is agreed between the parties from time to time.

The Mother is to provide the Father with a Post Office Box address to which he can send letters and/or gifts to the child, and the Mother is to check that Post Office Box no less frequently than once each month and around the time of Christmas and the child’s birthday.

Any letters that the Father sends to the child are not to contain:

(a) any denigrating comments in relation to the Mother or the maternal family;

(b) any suggestion that the Father will spend time with her or communicate with her via telephone or Skype unless such time or communication has been agreed between the parties.

The Mother is to ensure that the child receives any letters and/or gifts from the Father sent via Post.

The Mother is to email the Father at such email address as is supplied to him in writing from time to time and in the absence of such address to [email omitted] to inform the Father about major long term decisions she makes in relation to the child, including but not limited to those dealing with the issues set out below, within fourteen (14) days of such decisions being made:

(a) Decisions regarding the child’s long term health and medical needs;

(b) Decisions regarding the child’s name, including any change of name;

(d) The school that the child attends; and

(e) Whether the child is baptised, christened or otherwise formally initiated into any religious tradition including the details of that religious tradition and the date of her initiation.

The appointment of the Independent Children’s Lawyer will be discharged after one month from the date of these Orders.

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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