Gingham and Gingham - [2011] FamCA 223

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM

[2011] FamCA 223

FAMILY LAW – CHILDREN – where matter originally came before Federal Magistrates Court – where interim orders made placing child with father – where no reasons given – where no final orders or judgment delivered – where child has subsequently not had any face-to-face contact with his mother in nearly four years – where the only contact between the child and his mother has been by way of telephone calls twice per week – where the child is now thirteen – where the child has repeatedly stated that he does not want to see his mother – where orders currently provide for no contact between the child and the mother, except for telephone calls twice weekly – where the father has sole parental responsibility for the child – with whom the child should live – with whom the child should spend time

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

AIF v AMS (1999) 199 CLR 160
Cotton & Cotton (1983) FLC 91-330
Goode & Goode (2006) FLC 93-286
Hardie & Capris [2010] FamCA 1046
U v U (2002) 211 CLR 238

APPLICANT:

Ms Gingham

RESPONDENT:

Mr Gingham

INDEPENDENT CHILDREN’S LAWYER:

Christine Vachon

FILE NUMBER:

BRC

2720

2010

DATE DELIVERED:

Brisbane

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

27, 28, 29 October 2010

15, 16, 17 February 2011 and 12, 14 April 2011

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Hamwood

SOLICITOR FOR THE RESPONDENT:

Crowley Greenhalgh Solicitors of Brisbane

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Brasch

SOLICITOR FOR THE
INDEPENDENT CHILDREN’S LAWYER

Christine Vachon Solicitor of Brisbane

Orders

IT IS DECLARED THAT:

The presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (“the Act”) is rebutted in the best interests of X GINGHAM, born in November 1997 (“the child”).

IT IS ORDERED THAT

Parental Responsibility

The father shall have sole responsibility for making all such decisions as might be necessary in respect of the child’s schooling including, but not limited to, the school which the child attends.
The father shall otherwise have sole parental responsibility for the child with respect to “major long-term issues” as that expression is defined in the Family Law Act 1975 (“the Act”), SAVE THAT prior to the father making the sole ultimate decision about each such major long-term issue he shall:
a.Advise the mother in writing of the nature of the decision to be made and matters he is considering affecting that decision;
b.Invite the mother to provide her succinct written input to that decision;
c.Make the decision having considered the mother’s input;
d.Inform the mother of his ultimate decision in writing.
The father shall have sole parental responsibility for the child with respect to all issues that are not “major long-term issues” as defined in the Act.

Live With, Time and Facilitation of Relationship

The child shall live with the father.
The…

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 Gingham and Gingham

Details

AGLC: Gingham and Gingham [2011] FamCA 223
Case: [2011] FamCA 223
Decision Date: 13 May 2011

CaseChat Overview and Summary

In Gingham and Gingham, Murphy J considered the parental responsibility and living arrangements for the child, X Gingham. The dispute concerned the extent to which the presumption of equal shared parental responsibility should apply, and the practical arrangements for the child's care and contact with each parent.

The court was required to determine whether the presumption of equal shared parental responsibility was rebutted in the child's best interests. Further, the court had to decide on the specific orders regarding parental responsibility for major long-term issues and other issues, as well as the child's living arrangements and the nature and extent of time spent with each parent. The court also considered communication protocols between the parents and the child, and the publication of the proceedings.

Murphy J found that the presumption of equal shared parental responsibility was rebutted in the child's best interests. The father was granted sole parental responsibility for major long-term issues, with specific procedural requirements for consultation with the mother, and sole responsibility for all other issues. The child was ordered to live with the father, with limited face-to-face time with the mother, contingent on the child's wishes and the outcome of consultations with a child and adolescent psychiatrist. The court also made detailed orders regarding communication, information sharing about the child's health and schooling, and a non-denigration clause. Leave to file further proceedings was restricted.

Orders

Orders of the court

IT IS DECLARED THAT:

The presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (“the Act”) is rebutted in the best interests of X GINGHAM, born in November 1997 (“the child”).

IT IS ORDERED THAT

Parental Responsibility

The father shall have sole responsibility for making all such decisions as might be necessary in respect of the child’s schooling including, but not limited to, the school which the child attends.

The father shall otherwise have sole parental responsibility for the child with respect to “major long-term issues” as that expression is defined in the Family Law Act 1975 (“the Act”), SAVE THAT prior to the father making the sole ultimate decision about each such major long-term issue he shall:

a. Advise the mother in writing of the nature of the decision to be made and matters he is considering affecting that decision;

b. Invite the mother to provide her succinct written input to that decision;

c. Make the decision having considered the mother’s input;

d. Inform the mother of his ultimate decision in writing.

The father shall have sole parental responsibility for the child with respect to all issues that are not “major long-term issues” as defined in the Act.

Live With, Time and Facilitation of Relationship

The child shall live with the father.

The child shall spend no face-to-face time with the mother save in accordance with the succeeding provisions of this order and save otherwise as he might request.

In the event that the child expresses a wish to spend time with his mother, the father shall do all such things as are reasonably necessary so as to effect that time occurring in accordance with the child’s wishes.

The father and mother shall, commencing on 1 August 2012, nominate in writing and seek to agree upon an appropriately qualified child and adolescent psychiatrist to be consulted by the child as and from 1 December 2012 with a view to the child discussing all such issues as he might choose and with a view to considering, with the assistance of that psychiatrist, the re-establishment of face-to-face time with his mother.

In the event that no agreement as contemplated by the previous paragraph of these orders is reached between the parties by 1 September 2012, this order shall be taken as the authority and request of the parties to Dr V to nominate such a psychiatrist.

10. Each of the parties shall do all such things, sign all such authorities or other documents and the father pay all such fees as might be necessary so as to facilitate the attendance of the child, as and from 1 December 2012, upon the psychiatrist contemplated by paragraphs 8 or 9 of these Orders.

11. The father shall do all such things as might be necessary to facilitate the attendance of the child upon the psychiatrist contemplated by paragraphs 8 or 9 of these orders and any time between the child and the mother as he or she might arrange or recommend.

12. The Independent Children’s Lawyer is directed to forward a copy of these orders to Dr V and a copy of the reasons for judgment herein.

Communication

13. The child is at liberty to telephone the mother twice per week (on Tuesday and Thursday or otherwise as agreed) and otherwise as he might choose, with such telephone calls to be initiated by the child, and the father shall do all such things as might be necessary so as to encourage and facilitate such calls.

14. The father shall forthwith advise the Independent Children’s Lawyer, for communication to the mother, of the child’s residential and postal address and shall advise the mother in writing of any changes to either or both within 5 days of such change occurring.

15. The mother shall provide to the Independent Children’s Lawyer within 7 days of the date of this order, for communication to the mother, an e-mail address and all other such details as might be necessary so as to permit the child to contact her as he might choose via e-mail, Skype, text message or other such electronic communication.

16. The mother be at liberty to communicate with the child by letter or card (sent via pre-paid post) at all such times as she might choose and to forward to the child (via pre-paid post) any birthday or Christmas gifts.

17. Save as otherwise agreed between the parties in writing, the mother shall not, except in accordance with the provisions of these Orders, initiate communication with, or seek to initiate communication with, the child.

18. Save as otherwise agreed between the parties in writing and except for the mother providing in writing her contact details to the child’s school, the mother be restrained, and an injunction issue restraining the mother, from contacting any school which the child shall attend, and from causing or permitting others to contact, or trying to contact, the child and any school he attends.

Publication

19. Pursuant to s 121(9(g) of the Act, an account of these proceedings, namely these Orders and the Reasons for Judgment herewith, be authorised for publication by the Independent Children’s Lawyer to:

i. The principal of the child’s school;

ii. The child’s teacher or teachers;

iii. Any school counsellor or other counsellor or therapist attended by the child;

iv. Dr V and the psychiatrist contemplated by paragraphs 8 or 9 of these Orders.

Information about the Child

20. The father do all such things and sign all such documents as are necessary so as to authorise and request Dr Y to provide to Dr L any information requested by Dr L in respect of the child (but only in circumstances where Dr Y considers it professionally appropriate to do so) for the purposes of informing the mother of the diagnosis, medications or other treatment given to X, including treatment and concerns, if any, about compliance with any such diagnosis and treatment or medication/s, with the cost of providing such information to be borne by the father, but limited to the amount of $500.

21. The father shall as soon as reasonably practicable after the date of these Orders provide to the mother the name and address of:

i. The child’s treating doctor or doctors;

ii. Any counsellor, therapist or other health professional providing treatment to the child.

22. The father shall as soon as reasonably practicable after the date of these orders do all such things, sign all such authorities or other documents and pay all such reasonable amounts as might be necessary so as to authorise and direct:

i. The child’s school to provide to the mother a copy of each and all letters, reports or other documents provided by the school to the father from time to time in respect of the child and any school photos, or certificates, achievement awards or the like given to the child;

ii. The child’s treating medical practitioners to provide a copy of any documents given to the father in respect of the child and details of any medications prescribed;

iii. Any doctor or hospital providing emergency treatment or providing or contemplating surgical treatment for the child to advise the mother of the nature of the condition suffered by the child, the nature of the treatment and the reasons for it;

iv. Any counsellor or therapist to provide to the mother the nature and extent of any treatment provided to the child PROVIDED THAT nothing in this Order is taken to require any such counsellor or therapist to provide any such information which, in their professional opinion, ought not be provided in the child’s best interests.

Non-Denigration

23. Neither party shall, orally or in writing, denigrate the other to the child nor permit anyone in their presence to do so.

Leave to File Further Proceedings

24. Neither the mother nor father shall file any application in respect of the child or these Orders without first obtaining the leave of the court and, in that event:

i. An affidavit shall accompany such application setting out the reasons why leave should be granted, with such affidavit referring to these Orders and the Reasons for Judgment delivered herewith;

ii. The application shall be served on the other party and the Independent Children’s Lawyer;

iii. The other party and the Independent Children’s Lawyer shall be at liberty, should either or both so choose, to:

(a) Not file a Response; and/or

(b) Not file an affidavit in response; and/or

IT IS FURTHER ORDERED THAT

25. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

26. Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

27. The Independent Children’s Lawyer is discharged subsequent to the completion of her obligations pursuant to these orders and upon the later of the expiration of the appeal period or the hearing of any appeal.

28.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in 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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