KING & KING (No.2) - [2017] FCCA 2776

FEDERAL CIRCUIT COURT OF AUSTRALIA

KING & KING (No.2)

[2017] FCCA 2776

Catchwords:
FAMILY LAW – Parenting – the Mother’s application she have sole parental responsibility for the parties’ two youngest sons, that they live with her and the Father have sole parental responsibility for the parties’ eldest son and that he live with the Father – the Father seeks equal shared parental responsibility and for the parties’ sons to live with him and spend time with the Mother.

HELD – Orders made for the two youngest sons to live with the Mother and spend no time nor communicate with the Father – the eldest son to live with the Father and spend time with the Mother as agreed between them. The parent with whom the son/s live to have sole parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
King & King [2016] FCCA 827

Applicant:

MS KING

First Respondent:

MR KING

File Number:

MLC 3047 of 2015

Judgment of:

Judge Bender

Hearing date:

15 August 2017

Date of Last Submission:

17 August 2017

Delivered at:

Melbourne

Delivered on:

16 November 2017

REPRESENTATION

Counsel for the Applicant:

Ms Mansfield

Solicitors for the Applicant:

Stuthridge Legal

Counsel for the Respondents:

Mr Robertson

Solicitors for the Respondents:	Chinka (Hep) Steel
Counsel for the Independent Children's Lawyer:	Mr McLeod
Independent Children's Lawyer:	Joliman lawyers

ORDERS

All previous parenting orders be discharged.
The children X born (omitted) 2007 (“X”) and Y born (omitted) 2008 (“Y”) live with the Mother.
The Mother have sole parental responsibility for X and Y.
The Mother keep the Father informed of any significant long term decisions that she makes in relation to X and/or Y.
The Father be and is hereby restrained from spending time and communicating with X and/or Y.
The child Z born (omitted) 2003 (“Z”) live with the Father.
The Father have sole parental responsibility for Z.
The Father keep the Mother informed of any significant long term decisions that he makes in relation to Z.
Z spend time and communicate with the Mother in accordance with his wishes and the Father facilitate Z’s time with the Mother in accordance with Z’s wishes.
The Father do all things necessary to ensure that Z attends upon Mr D from Headspace or any other such mental health practitioner as is recommended by Headspace or Z’s treating general practitioner or other authorities from time to time and the Father follow all reasonable directions of the treating practitioner/s.
The Mother be at liberty to obtain a passport for X and/or Y without the consent and signature of the Father, and she be permitted to travel outside of the Commonwealth of Australia with X and/or Y without the consent of the Father.
The Mother shall be entitled to receive school reports, school photograph order forms and newsletters from Z’s…

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 KING & KING (No.2)

Details

AGLC: King and King (No.2) [2017] FCCA 2776
Case: [2017] FCCA 2776
Decision Date: 16 November 2017

CaseChat Overview and Summary

This matter concerned parenting orders sought by the Mother and the Father concerning their three sons. The Mother sought sole parental responsibility for the two youngest sons, that they live with her, and that the Father have sole parental responsibility for the eldest son, with him living with the Father. The Father sought equal shared parental responsibility for all three sons and for them to live with him, with time spent with the Mother.

The court was required to determine the parenting arrangements for the three sons, specifically addressing issues of parental responsibility, living arrangements, and the extent of time and communication between the children and each parent. The court also had to consider the father's application for equal shared parental responsibility and the mother's application for sole parental responsibility for the younger children.

Judge Bender made orders discharging all previous parenting orders. The two youngest sons were ordered to live with the Mother, who was granted sole parental responsibility for them. The Father was restrained from spending time or communicating with these two sons. The eldest son was ordered to live with the Father, who was granted sole parental responsibility for him. The eldest son was to spend time and communicate with the Mother in accordance with his wishes, with the Father to facilitate this. The court also made specific provisions regarding significant long-term decisions, travel, school reports, notification of illness or injury, and an injunction restraining the Father from approaching the Mother or the younger sons.

Orders

Orders of the court

All previous parenting orders be discharged.

The children X born (omitted) 2007 (“X”) and Y born (omitted) 2008 (“Y”) live with the Mother.

The Mother have sole parental responsibility for X and Y.

The Mother keep the Father informed of any significant long term decisions that she makes in relation to X and/or Y.

The Father be and is hereby restrained from spending time and communicating with X and/or Y.

The child Z born (omitted) 2003 (“Z”) live with the Father.

The Father have sole parental responsibility for Z.

The Father keep the Mother informed of any significant long term decisions that he makes in relation to Z.

Z spend time and communicate with the Mother in accordance with his wishes and the Father facilitate Z’s time with the Mother in accordance with Z’s wishes.

10.

The Father do all things necessary to ensure that Z attends upon Mr D from Headspace or any other such mental health practitioner as is recommended by Headspace or Z’s treating general practitioner or other authorities from time to time and the Father follow all reasonable directions of the treating practitioner/s.

11.

The Mother be at liberty to obtain a passport for X and/or Y without the consent and signature of the Father, and she be permitted to travel outside of the Commonwealth of Australia with X and/or Y without the consent of the Father.

12.

The Mother shall be entitled to receive school reports, school photograph order forms and newsletters from Z’s school.

13.

The Father shall be entitled to receive school reports, school photograph order forms and newsletters from X and Y’s schools, but is otherwise restrained from attending at their schools.

14.

The Mother and the Father be at liberty to provide a copy of these orders to the schools at which the child or children in their care attend.

15.

The Mother shall immediately notify the Father in writing by email or text message in the event X and/or Y suffer any serious illness or injury.

16.

The Father shall immediately notify the Mother in writing by email or text message in the event Z suffers any serious illness or injury.

17.

The Father be restrained by injunction from approaching the Mother, X and Y or either of them or coming within 500 metres of the Mother’s residence or place of work.

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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