JOHNSTON & PRITCHARD - [2010] FMCAfam 942

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOHNSTON & PRITCHARD

[2010] FMCAfam 942

FAMILY LAW – Parenting – interim parenting orders – child aged four – order for return of child – history of shared care and conflict between parents – father raises concerns about mother’s care of child and mental stability – various professionals have been consolidated – parents and child have been referred to Redbank house – difficulties of making any findings – appointment of independent children’s lawyer and orders for psychiatric evidence.

Family Law Act 1975, s.60CC

Applicant:

MS JOHNSTON

Respondent:

MR PRITCHARD

File Number:

SYC 4591 of 2008

Judgment of:

Walker FM

Hearing date:

3 August 2010

Date of Last Submission:

3 August 2010

Delivered at:

Sydney

Delivered on:

4 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr Mills

Solicitors for the Applicant:

Clive Mills & Associates

Counsel for the Respondent:

Mr Paltos

Solicitors for the Respondent:

Paltos & Co

THE COURT ORDERS THAT:

The child, X born (omitted) 2006 is to be returned to the mother forthwith.
The current arrangements, outlined in paragraph 11 of the Respondent father’s affidavit sworn 3 August 2010, are to recommence as of Monday 9 August 2010. Accordingly:
(a)The child is to live with the mother.
(b)The child is to spend time with the father as follows:
(i)From Monday after preschool at 5.30pm (or 8.30am if he is ill), to 7.30pm on Tuesday.
(ii)From 8.30am on Friday to 5.30pm on Saturday
The mother is to forthwith attend upon her treating general practitioner and request a referral to the psychiatrist she has previously seen for the purpose of obtaining a report relating to her present emotional well-being and her compliance with medication
By consent, both parties keep the other informed at all times of their current residential address, mobile telephone number, Skype address, facsimile number and email address.
By consent, the parties communicate by email in relation to the welfare of X.
By consent, each party be and is hereby restrained from removing and/or causing and/or allowing the child to be removed from the Commonwealth of Australia.
Liberty is granted to each party to restore the matter to the list.

THE COURT FURTHER ORDERS THAT:

By consent, orders be made in accordance with the document titled, “Minute of Proposed Order appointing Court Expert”, dated 4 August 2010, signed by the parties and their legal representatives.
The matter be adjourned to 24 February 2011 at 10.00am before me for hearing for no longer than two days.
The Applicant pay the trial fee or obtain a waiver of that fee in accordance with, and within the time specified in the Federal Magistrates Court Regulations 2000.
Each party file and serve any affidavits on which they intend to rely at hearing by no later than 4.00pm 14 working days prior to the hearing.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and I request the Legal Aid Commission of NSW to provide such representation.
The parties…

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 JOHNSTON & PRITCHARD

Details

AGLC: JOHNSTON & PRITCHARD [2010] FMCAfam 942
Case: [2010] FMCAfam 942
Decision Date: 4 August 2010

CaseChat Overview and Summary

The case of Johnston & Pritchard involved a dispute over the custody and care arrangements of a child born in 2006. The matter was heard in the Family Court of Australia. The father, who was the applicant, sought changes to the existing care arrangements which were previously agreed upon by the parties. These arrangements were that the child was to live with the mother, but had specified visitation times with the father. The mother opposed the changes, arguing that the existing arrangements should remain in place.

The legal issues before the court included whether the existing care arrangements should be altered and if so, what modifications should be made to ensure the best interests of the child. The court also had to consider the mother's request for a psychiatric evaluation to assess her emotional well-being and compliance with medication, as well as the parties' agreement on communication methods and contact details.

The court found that the existing care arrangements, as outlined in the father's affidavit, should be reinstated. The child was to return to living with the mother, with visitation times for the father specified. The mother was ordered to seek a psychiatric report to address her emotional well-being and medication compliance. The court further ordered that both parties maintain updated contact information and communicate through email regarding the child's welfare. Additionally, the court granted liberty to either party to restore the matter to the list and ordered that a court expert be appointed as per the agreement of the parties. The matter was adjourned for a hearing on the specified date to further address any remaining issues.

Orders

Orders of the court

The child, X born (omitted) 2006 is to be returned to the mother forthwith.

The current arrangements, outlined in paragraph 11 of the Respondent father’s affidavit sworn 3 August 2010, are to recommence as of Monday 9 August 2010. Accordingly:

(a) The child is to live with the mother.

(b) The child is to spend time with the father as follows:

(i) From Monday after preschool at 5.30pm (or 8.30am if he is ill), to 7.30pm on Tuesday.

(ii) From 8.30am on Friday to 5.30pm on Saturday

The mother is to forthwith attend upon her treating general practitioner and request a referral to the psychiatrist she has previously seen for the purpose of obtaining a report relating to her present emotional well-being and her compliance with medication

By consent, both parties keep the other informed at all times of their current residential address, mobile telephone number, Skype address, facsimile number and email address.

By consent, the parties communicate by email in relation to the welfare of X.

By consent, each party be and is hereby restrained from removing and/or causing and/or allowing the child to be removed from the Commonwealth of Australia.

Liberty is granted to each party to restore the matter to the list.

THE COURT FURTHER ORDERS THAT:

By consent, orders be made in accordance with the document titled, “Minute of Proposed Order appointing Court Expert”, dated 4 August 2010, signed by the parties and their legal representatives.

The matter be adjourned to 24 February 2011 at 10.00am before me for hearing for no longer than two days.

10.

The Applicant pay the trial fee or obtain a waiver of that fee in accordance with, and within the time specified in the

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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