FAMILY COURT OF AUSTRALIA
| JANDA & FAIRBURN (NO. 2) | [2019] FamCA 807 |
| FAMILY LAW – CHILDREN – With whom a child lives – Where the mother seeks to relocate to Queensland with the child – Where the father opposes – Where the father seeks that he child live in his primary care and spend significant time with the mother – Where there are mutual allegations of family violence – Where it was historically alleged that the father perpetrated sexual abuse on the child – Where the mother asserts that she no longer presses those allegations – Where the maternal aunt lives with the mother and is actively involved in the day to day care of the child – Where the maternal aunt considers that the father sees the child as a sex toy and that the father is a paedophile – Where the maternal aunt is unable to contain her dislike of the father – Where there is a significant risk of the mother’s attitude reverting following the conclusion of the proceedings – Where it is unlikely that the mother will support the child’s relationship with the father if permitted to relocate – Where the father seeks to restrain the maternal aunt from coming into contact with the child for a period of three months – Where the Independent Children’s Lawyer supports the orders sought by the father – Where the child has a strong relationship with both parents – Orders. FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the father seeks sole parental responsibility and the mother seeks equal shared parental responsibility – Where there has been an order in place giving the parties equal shared parental responsibility – Where the father has been effectively excluded from making decisions in respect of major issues relating to the child – Where the father contends that the mother is unlikely to desist in her pursuit to have him considered as a paedophile and an unacceptable risk to the child – Where the mother has abrogated her responsibility to the child since the date of separation in her pursuit of the father – Where the father having sole parental responsibility will ensure that the child’s relationship with each of the parties is maintained but will limit the ability and scope of the mother to engage the child in unnecessary assessment arising from false allegations of sexual abuse – Orders. |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 65DAA |
| AMS v AIF (1999) 199 CLR 160 Beckham v Desprez [2015] FamCAFC 247 Blanding v Blanding [2016] FamCAFC 21 Godfrey & Sanders [2007] FamCA 102 Mazorski & Albright [2007] FamCA 520 Starr & Duggan [2009] FamCAFC 115 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Ms Janda |
| RESPONDENT: | Mr Fairburn |
| INDEPENDENT CHILDREN’S LAWYER: | Story & Associates |
| FILE NUMBER: | DNC | 408 | of | 2014 |
| DATE DELIVERED: | 6 November 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 14… |
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- AGLC
- Janda and Fairburn (No 2) [2019] FamCA 807
- Case
- [2019] FamCA 807
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. Firstly, it needed to decide the living arrangements for the child, considering the mother's proposed relocation and the father's counter-application. Secondly, the court had to address the issue of parental responsibility, specifically whether to continue with equal shared parental responsibility or grant sole parental responsibility to one parent, given the existing order and the father's contention that the mother had been excluded from decision-making and was unlikely to cease pursuing allegations against him. Finally, the court considered the father's request to restrain the maternal aunt from contact with the child for a specified period.
Berman J reasoned that the mother's attitude towards the father, particularly her inability to contain her dislike and the significant risk of her views reverting post-proceedings, coupled with the maternal aunt's strong animosity and unsubstantiated allegations, made it unlikely that the mother would support the child's relationship with the father if relocation were permitted. The court found that the mother had abrogated her responsibility to the child by pursuing allegations against the father. Consequently, the court determined that granting the father sole parental responsibility would ensure the child's relationship with both parties was maintained and limit the mother's ability to involve the child in unnecessary assessments arising from false allegations. The court also considered the child's strong relationship with both parents when making its orders.
The court ordered the discharge of all previous parenting orders. The father was granted sole parental responsibility, with a proviso that he endeavour to reach agreement with the mother on major issues, but ultimately retain decision-making power if agreement could not be reached. The child was ordered to live with the mother and father in an equal shared care arrangement, with specific provisions for weekly, holiday, and special occasion time. The mother was restrained from allowing the child to attend counselling without agreement, and the maternal aunt was restrained from contact with the child for specified periods, with subsequent contact only in the mother's presence. Further orders addressed communication, health information, schooling, and prohibitions against discussing adult issues or denigrating the other parent in the child's presence.
Orders
Orders of the court
1.
That all previous parenting orders be discharged.
2.
That the father have sole parental responsibility for X born … 2013 (“the child”) PROVIDED that the father shall use his best endeavours to reach agreement with the mother on any major issue affecting the child but if he is unable to do so THEN the father shall make the necessary decisions and advise the mother as soon as is reasonably practical thereafter.
3.
That the child do live with the mother and the father in an equal shared care arrangement as follows:-
(a) With the father from the conclusion of school Friday (or 3.00 pm if a non-school day) until the commencement of school Friday (or 3.00 pm if a non-school day) commencing 8 November 2019 and each alternate week thereafter;
(b) With the mother from the conclusion of school Friday (or 3.00 pm if a non-school day) until the commencement of school Friday (or 3.00 pm if a non-school day) commencing 15 November 2019 and each alternate week thereafter;
(c) That during the Christmas school holiday period from the conclusion of Term 4 in 2019 and each year thereafter the child shall spend one half of the holiday period with each of the parties and in default of agreement with the mother for the first half of the Christmas school holiday period in 2019/2020 and in alternate years and for the second half of the school holiday period in 2020/2021 and in alternate years thereafter and with the father for the second half of the Christmas school holiday period in 2019/2020 and each alternate year thereafter and the first half of the Christmas school holiday period in 2020/2021 and each alternate year thereafter;
(d) Such further and other times as may be agreed between the parties.
4.
If both parties shall be in close proximity on Christmas Day THEN the child shall spend time with each of them at the following specified times unless otherwise agreed:-
(a) The child shall spend time with the father:-
(i) From 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2019 and each alternate year thereafter;
(ii) From 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2020 and each alternate year thereafter;
(b) The child shall spend time with the mother:-
(i) From 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2019 and each alternate year thereafter;
(ii) From 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2020 and each alternate year thereafter.
5.
If Mother’s Day shall fall on a day when the child is living with the father the child shall spend time with the mother from 6.00 pm on the immediately preceding Saturday until 6.00 pm on Mother’s Day.
6.
If Father’s Day shall fall on a day when the child is living with the mother the child shall spend time with the father from 6.00 pm on the immediately preceding Saturday until 6.00 pm on Father’s Day.
7.
The child shall spend time on her birthday with the parent with whom she is not living at that time on the following basis:-
(a) From 9.00 am until 12 noon on her birthday if the day on which her birthday falls is on the weekend or a non-school day;
(b) From the conclusion of school until 6.00 pm on her birthday if the day on which the child’s birthday falls is a school day.
8.
That each parent shall have the right to communicate with and obtain information concerning the child’s physical, mental health and welfare from any medical practitioner, medical specialist, dentist, physiotherapist, psychologist, counsellor, social worker, speech therapist or such other person providing treatment to the child.
9.
That if the child falls ill, the parent with whom the child is living at the time will take her to a family doctor and/or local hospital in the event of an emergency and shall advise the other party of any emergency or major illness as soon as possible.
10.
That the mother be restrained and an injunction granted restraining her from allowing, permitting or arranging for the child to attend for any counselling or therapy or psychological treatment unless otherwise as agreed between the parties.
11.
That as and from thirty (30) days from the date of this order the mother shall be restrained and an injunction granted restraining her from allowing Ms B Janda to come into contact with the child for a period of one hundred and twenty (120) days and thereafter any contact with the child for a period of one hundred and eighty (180) days shall only be in the presence of the mother.
12.
.That each party be entitled to be involved in the child’s school and be permitted to obtain copies of all documents relating to the child inclusive of file notes, activities and photographs at their own cost direct from the child’s school.
13.
With respect to the child’s schooling:-
(a) Each party shall do all acts and things that are necessary to ensure that the child’s school enrolment is maintained in the name of both the father and the mother and shall provide and maintain accurate contact details and medical emergency details as required by the child’s school;
(b) Each parent shall have the right to attend and spend time with and communicate with the child at school and other public venues for events that parents are normally invited to including but not limited to sports days, sporting events, school concerts, school plays, fundraisers, excursions, school camps and other like events and in the event of the child playing sport or participating in another activity each parent shall have the right to attend such event as a spectator, volunteer or participant.
14.
The mother and the father shall communicate by email and face to face at handovers to exchange information relating to the care and welfare of the child and shall use the telephone in the case of an emergency.
15.
The child shall be entitled to freely communicate at all other times by telephone, mobile phone, SMS text message and/or email with whichever parent she is not living at the time.
16.
Each party shall advise the other as to any change in their residential address or contact telephone numbers within seven (7) days of the date of the change taking place.
17.
That in the event that either party proposes to travel outside the Northern Territory that party shall provide seven (7) days written notice to the other party of their intention to travel, the date of departure and return and the destination and contact details for the child whilst travelling.
18.
Both the mother and the father be restrained and an injunction granted restraining each of them from:-
(a) Discussing adult issues including disseminating information pertaining to these proceedings with or in the presence of the child or allowing any other third party to do so;
(b) Denigrating the other party to or in the presence of the child or allowing any other party to do so;
(c) Removing or attempting to remove or causing or permitting removal of the child from the Commonwealth of Australia unless otherwise agreed between the parties.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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