Jordan and Lloyd and Ors - [2010] FamCA 288

FAMILY COURT OF AUSTRALIA

JORDAN & LLOYD AND ORS

[2010] FamCA 288

FAMILY LAW – CHILDREN – With whom a child lives – Orders were made in 2005 for the child to live with the maternal grandmother and spend time with the mother – Mother and first respondent seek orders for the child to live in their household while the maternal grandmother proposes that the child continue living with her – Rule in Rice v Asplund discussed – The evidence of the single expert and treating therapists is that the child has settled and progressed noticeably over the period he has lived with the maternal grandmother – The child live with the maternal grandmother and spend time with the mother and the child’s half siblings for three hours three times a year, supervised by a contact centre
FAMILY LAW – CHILDREN – Parental responsibility – Relationship between the mother and maternal grandmother has broken down completely – Maternal grandmother to have sole parental responsibility for the child
FAMILY LAW – CHILDREN – Child’s surname – Child to retain his existing surname

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Chapman v Palmer (1978) 4 Fam LR 462
Flanagan v Handcock (2001) FLC 93-074
Goode & Goode (2006) FLC 93-286
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
Marsden v Winch [2009] FamCAFC 152
M v B [2001] FamCA 894
Rice v Asplund (1979) FLC 90-725
Sampson v Hartnett (No.10) (2007) FLC 93-350
Taylor v Taylor (1979) 143 CLR 1

APPLICANT:

Ms Jordan

1st RESPONDENT:

Mr Lloyd

2nd RESPONDENT:

Ms Ether

3rd RESPONDENT:

Mr Ether

4th RESPONDENT:

Mr Cooper

INDEPENDENT CHILDREN’S LAWYER:

Ms Crawford, Legal Aid

FILE NUMBER:

PAF

2106

2004

DATE DELIVERED:

20 April 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Parramatta

JUDGMENT OF:

Justice Austin

HEARING DATE:

22, 23, 24 and 25 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE 1ST RESPONDENT:

Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT:

Not Applicable

COUNSEL FOR THE 2ND RESPONDENT:

Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT:

Mr Harman

COUNSEL FOR THE 3RD RESPONDENT:

Not Applicable

SOLICITOR FOR THE 3RD RESPONDENT:

Not Applicable

COUNSEL FOR THE 4TH RESPONDENT:

Not Applicable

SOLICITOR FOR THE 4TH RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Macpherson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Crawford, Legal Aid NSW

Orders

All former parenting orders are discharged in respect of the following children:
(a) K, born … July 2002; and
(b) W, born … June 2003.
The Independent Children’s Lawyer shall dispense with further attempts at service of pending Applications and Amended Response, pursuant to orders made on 22 March 2010, upon Mr Cooper, the biological father of the child, C, born … November 1999 (“the child”).
The parties shall dispense with service of these orders upon Mr Cooper.
All former parenting orders in respect of the child are discharged.
The maternal grandmother shall have sole parental responsibility…

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.

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Details

Case: [2010] FamCA 288
Decision Date: 20 April 2010

CaseChat Overview and Summary

This matter concerned applications relating to the parenting of three children, K, W, and C. The court was required to determine the future parenting arrangements for these children, including issues of parental responsibility, living arrangements, and time spent with parents and siblings. The court also considered the service of applications and the discharge of existing orders.

The primary legal issues before the court were the appropriate parenting orders to be made in light of the circumstances of the children and the parties involved. This included determining who should have parental responsibility and where the children should live. The court also had to address the practicalities of contact and communication between the children and their parents and siblings, including the role of a contact centre and the use of communication methods such as mail and telephone. Furthermore, the court was required to consider the implications of the Family Law Act 1975 (Cth) regarding the particulars of obligations and consequences of contravention of the orders.

Justice Austin discharged all former parenting orders in respect of K and W. For the child C, the court discharged all former parenting orders and made new orders. The maternal grandmother was granted sole parental responsibility for C, and C was ordered to live with the maternal grandmother. Specific provisions were made for C to spend time with his mother and half-brothers under supervised conditions at a contact centre, with detailed arrangements for attendance, payment, and communication. The court also made orders regarding communication between C and his mother and half-brothers by mail and telephone, and imposed restraints on the parties concerning the child's surname, corporal punishment, and denigration of other parties. The Independent Children's Lawyer was discharged upon the expiration of the appeal period.

Orders

Orders of the court

All former parenting orders are discharged in respect of the following children:

(a) K, born … July 2002; and

(b) W, born … June 2003.

The Independent Children’s Lawyer shall dispense with further attempts at service of pending Applications and Amended Response, pursuant to orders made on 22 March 2010, upon Mr Cooper, the biological father of the child, C, born … November 1999 (“the child”).

The parties shall dispense with service of these orders upon Mr Cooper.

All former parenting orders in respect of the child are discharged.

The maternal grandmother shall have sole parental responsibility for the child.

The child shall live with the maternal grandmother.

Each of the parties shall take all reasonable steps to ensure that the child spends time with the mother and his half-brothers for three hours on three occasions annually, being the Saturdays falling closest to 30 April, 30 August, and 30 December each year, at times nominated by the H Children’s Contact Centre (“the Centre”), with such time to be spent at and supervised by staff of the Centre.

For the purpose of implementing Order 7:

(a) Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the Centre.

(b) Each party shall comply with all reasonable requests and directions of the Centre.

(c) The maternal grandmother shall pay any costs due to the Centre for use of the Centre’s venue and supervisory services.

(d) The maternal grandmother shall cause the delivery of the child to, and the collection of the child from, the Centre at the commencement and conclusion of the time spent by the child with the mother and his half-brothers.

(e) The first respondent is restrained from causing or permitting the child to come into contact with him at the Centre.

(f) The mother is restrained from causing or permitting the child to come into contact with the first respondent at the Centre.

(g) The mother is restrained from discussing the maternal grandmother and first respondent with the child.

(h) If the mother fails to attend at a session for the child to spend time with her and his half-brothers, then the mother shall not be permitted to participate in any further sessions for a period of 12 months and the operation of Order 7 is suspended for that period as between the mother and child (but not as between the child and his half-brothers).

(i) If on an occasion that the child is due to spend time with the mother and his half-brothers that time together cannot be accommodated by reason of closure of the Centre the time that the child would otherwise have spent with the mother and his half-brothers shall be made-up at another time as close to the original time as can reasonably be arranged.

Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the mother and his half-brothers as follows:

(a) By mail, and for that purpose the maternal grandmother shall forthwith provide to the child the mother’s residential address, and shall ensure that the child is given any mail received at her address from the mother or the child’s half-brothers which is directed to the child.

(b) By telephone, and for that purpose the maternal grandmother shall forthwith provide the child with the mobile telephone number of the mother, and shall ensure that the child is free at any time that he requests to use the maternal grandmother’s telephone to call that mobile telephone number.

10.

The parties are restrained from causing or permitting the child to be known by any surname other than “Jordan”.

11.

Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

12.

Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

13.

The maternal grandmother shall notify the mother of any medical emergency, illness or injury suffered by the child whilst in her care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the mother about the condition and treatment of the child.

14.

The maternal grandmother shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms for the child.

15.

The mother and maternal grandmother shall each forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, and mobile telephone number.

16.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.

17.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

18.

All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

19.

Any and all outstanding applications are dismissed.

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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