Giltson and Basfield - [2014] FamCA 319

FAMILY COURT OF AUSTRALIA

GILTSON & BASFIELD

[2014] FamCA 319

FAMILY LAW – CHILDREN – Best interests – Where the orders the father sought changed throughout the course of the proceedings – Where the child is currently in the primary care of the mother – Where the mother sought orders that the child spend no time with the father and that the mother have sole parental responsibility for the child – Where the hearing was adjourned part-heard so that the father could attend to certain matters including accommodation and employment as he was not in a position to take the child into his care pursuant to orders he originally sought – Where after the resumption of the hearing the father was again not in a position to have the child in his care and, as a consequence, the father amended the orders he sought with respect to the child – Where there was a history of non-compliance with court orders by both parties – Where there was evidence of the mother’s psychological state – Where the court found that the mother suffers from post-traumatic stress disorder and that contact, even indirectly, with the father exacerbates her severe anxiety – Relevant legal principles applied – Where the mother’s emotional and psychological state and such transfer to the child will continue so long as there are attempts to have the child spend time with the father – Where the single expert regarded the child as possibly having a post-traumatic stress disorder by association with the mother – Where the court found that the child’s behaviour has changed so markedly not because of the contact with the father per se but from the reaction of the mother to such contact – Where an anxious parent’s anxiety that impairs their parenting ability and negatively affects a child is a relevant factor to take into account when making parenting orders – Where the presumption of equal shared parental responsibility has been rebutted – Where order for no contact made.

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

A & A (1998) 22 Fam LR 756
Donaghey & Donaghey (2011) 45 Fam LR 183
Russell & Close 25 June 1993 unreported

APPLICANT:

Mr Giltson

RESPONDENT:

Ms Basfield

INDEPENDENT CHILDREN’S LAWYER:

Ms Warda

FILE NUMBER:

SYC

3063

2012

DATE DELIVERED:

16 May 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

27 - 30 August 2013

31 March 2014
1 – 2 April 2014

REPRESENTATION

THE APPLICANT IN PERSON:

Mr Giltson

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Spain

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

Orders

That the mother shall have sole parental responsibility for the child E Dillon born … 2006 (‘the child’).
That the child shall live with the mother.
That the child shall spend no time with the father.
That the father shall be restrained from:
(a)contacting the child, in…

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 Giltson and Basfield

Details

AGLC: Giltson and Basfield [2014] FamCA 319
Case: [2014] FamCA 319
Decision Date

CaseChat Overview and Summary

In *Giltson & Basfield* [2014] FamCA 319, the Family Court of Australia considered parenting orders concerning a child, E Dillon. The father, Mr Giltson, sought orders for shared parental responsibility and for the child to live with him, while the mother, Ms Basfield, sought sole parental responsibility and for the child to live with her, with no contact with the father. The proceedings involved significant shifts in the orders sought by the father throughout their duration, and a history of non-compliance with court orders by both parties.

The central legal issues before the Court were whether the presumption of equal shared parental responsibility applied, and if not, how to determine the child's best interests, particularly in light of the mother's psychological state and its impact on the child. The Court was required to assess the evidence regarding the mother's post-traumatic stress disorder, its exacerbation by contact with the father, and the potential for this anxiety to transfer to the child. The Court also had to consider the father's fluctuating capacity to care for the child, evidenced by his accommodation and employment circumstances.

The Court found that the mother suffers from post-traumatic stress disorder, which significantly impacts her parenting ability and negatively affects the child. It was determined that the child's behavioural changes were a result of the mother's anxious reaction to any attempts at contact with the father, rather than the contact itself. The Court concluded that the presumption of equal shared parental responsibility was rebutted due to the mother's psychological state and its detrimental effect on the child. The Court applied the principles that a parent's anxiety impairing their parenting capacity is a relevant factor in determining a child's best interests.

Consequently, the Court made orders for the mother to have sole parental responsibility, for the child to live with the mother, and for the child to spend no time with the father. The father was also restrained from contacting the child or the mother, and the mother was granted liberty to change the child's surname and remove the child from Australia. All previous parenting orders were discharged.

Orders