Garth & Garth - [2022] FedCFamC2F 189

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garth & Garth [2022] FedCFamC2F 189

File number(s): PAC 3833 of 2015

Judgment of: JUDGE OBRADOVIC

Date of judgment: 25 February 2022

Catchwords: FAMILY LAW – Interim Parenting – short form reasons – teenage children – high parental conflict – final parental orders made in December 2020 – best interest of children – child to spend time with father in accordance with her wishes.

Legislation: Family Law Act 1975 (Cth) s.69ZL.

Cases cited: Goode v Goode [2006] FamCA 1346
Keats & Keats [2016] FamCAFC 156
Rice & Asplund [1978] FamCA 84

Division: Division 2 Family Law

Number of paragraphs: 32

Date of hearing: 25 November 2021

Place: Parramatta

Counsel for the Applicant: Mr Kenny of Counsel

Solicitors for the Applicant: Rafton Family Lawyers

Counsel for the Respondent: Ms Druitt of Counsel

Solicitors for the Respondent: Farah Lawyers

Counsel for the Independent Children’s Lawyer: Ms Yu of Counsel

Solicitors for the Independent Children’s Lawyer: Kathryn Renshall Lawyers
ORDERS

PAC 3833 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GARTH

Applicant

AND:
MR GARTH

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

25 FEBRUARY 2022

PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.All prior parenting orders in respect of X born in 2008 are suspended.
2.The mother shall have sole parental responsibility for X.
3.X shall live with the mother and spend time with the father in accordance with her wishes.
4.The father be and is hereby restrained from:
(a)Attending at X’s scheduled basketball games or other extra-curricular activities unless he is specifically invited in writing by X and he will ensure that third persons including his wife do not approach or attempt to approach X.
(b)By attending at or approaching X’s school unless he is specifically invited in writing by X and he will ensure that third persons including his wife do not approach or attempt to approach X.

5.The father shall pass on any gifts or messages that Y born in 2006 and X send to him, which are for the children’s half-sibling B born in 2019.
6.The father shall permit the children to speak to B by Zoom and/or Facetime, at least once per fortnight, every second Sunday at 5pm, or at such other times as agreed between the parties. Such calls will be facilitated by the mother’s phone to the father’s phone, and the father shall not interfere in such calls.
7.The matter is listed for directions at 10am on 14 April 2022.
8.The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.

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)…

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 Garth & Garth

Details

AGLC: Garth & Garth [2022] FedCFamC2F 189
Case: [2022] FedCFamC2F 189
Decision Date

CaseChat Overview and Summary

In this case, Ms. Garth and Mr. Garth were involved in a family law dispute concerning the parenting arrangements of their two children, X born in 2008 and Y born in 2006. The primary legal issue before the court was determining the best interests of the children and establishing appropriate parenting orders. This involved considering the high levels of conflict between the parents, the children's living arrangements, and the impact of the parents' behaviours on the children.

The court considered the evidence presented by both parents, including text messages, audio recordings, and expert opinions. The evidence revealed that X had been subjected to verbal abuse by the father and his wife while living with them. X expressed a strong desire to live with the mother and not spend time with the father. The court found that the father's attitude towards the mother was negative and that he was unlikely to encourage a relationship between X and the mother. Given the circumstances, the court determined that it was in X's best interest to live with the mother and have sole parental responsibility assigned to her. Additionally, the court imposed restrictions on the father's ability to attend X's school and extracurricular activities to alleviate X's fear of being taken from school.

The court also addressed the issue of Y's relationship with her half-sibling, B, born in 2019. Orders were made to facilitate communication between Y and B, ensuring that the father would not interfere with these interactions.

The final orders suspended all prior parenting orders concerning X, assigned sole parental responsibility to the mother, and allowed X to live with the mother while spending time with the father according to her wishes. The matter was listed for further directions to address ongoing issues.

Orders