Koch and Koch - [2016] FamCA 214

FAMILY COURT OF AUSTRALIA

KOCH & KOCH

[2016] FamCA 214

FAMILY LAW – CHILDREN - where the two children of the parents' marriage are 17 and 11 years old respectively - where the oldest child lives with his mother - where the youngest child lives with his father - where the mother has a history of significant mental ill health - whether the mother's mental ill health poses an unacceptable risk to the children – where the mother has failed to lead any evidence in relation to the current state of her mental health – whether the father poses an unacceptable risk given the alleged history of family violence – whether any order should be made for the 17 year old

FAMILY LAW – PROPERTY - whether it is just and equitable to make any order - where it is held to not be just and equitable to make an order adjusting the property interests of the parties.

Child Protection Act 1999 (Cth) s18
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAC

APPLICANT:

Mr Koch

RESPONDENT:

Ms Koch

INDEPENDENT CHILDREN’S LAWYER:

Barbara Ellen Fox

FILE NUMBER:

BRC

4667

2011

DATE DELIVERED:

7 April 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

4 - 5 April 2016

REPRESENTATION

THE APPLICANT:

Self represented

THE RESPONDENT:

Self represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr. Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox

Orders

Parenting

That all previous parenting Orders or parenting plans be discharged.
That the child B born … 2004 live with the Father.
That the Father have sole parental responsibility for the child’s long term welfare care and development.
That the child spend time with and communicate with the Mother at all times as agreed between the Mother and the Father.
That the consent of the Mother is dispensed with for the Father to obtain an Australia Passport for the child.
That the child be permitted to travel with the Father outside the Commonwealth of Australia at least once per year.
That neither parent denigrate the other Parent to or in the presence or hearing of the children.
That neither parent is to discuss these proceedings to or in the presence or hearing of the children.
That the Mother is to ensure that the child C attends school on a regular basis.
That these Orders be sufficient authority for the Father to obtain copies of C’s school progress reports and attend functions that parents normal attend including parent teacher meetings.
That the Mother provide the names and contact details of C’s treating medical and allied health practitioners and these Orders be sufficient authority for the Father to obtain copies of any medical reports for C and/or discuss any medical problems that C may have with his treating practitioners.
That each parent is to keep the other appraised of their current email address and advise of any change within 48 hours.
That each parent is to advise the other if…

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 Koch and Koch

Details

AGLC: Koch and Koch [2016] FamCA 214
Case: [2016] FamCA 214
Decision Date: 7 April 2016

CaseChat Overview and Summary

In the matter of *Koch and Koch*, Carew J made orders concerning the parenting of two children, B and C, and the property settlement between the parents. The proceedings involved disputes over the children's living arrangements, parental responsibility, and the division of marital assets.

The court was required to determine the best interests of the children, B and C, in relation to their residence, parental responsibility, and communication with each parent. Additionally, the court had to consider the property settlement application brought by one of the parties.

Carew J ordered that the child B live with the Father and that the Father have sole parental responsibility for B's long-term welfare, care, and development. The child B was to spend time with and communicate with the Mother as agreed between the parents. The court also made orders regarding B's passport and international travel with the Father. Specific directions were given to both parents concerning their conduct towards each other in the presence of the children and the discussion of proceedings. The Mother was directed to ensure child C's regular school attendance, and the Father was granted authority to obtain C's school progress reports and attend school functions. Furthermore, the Father was given authority to obtain C's medical reports and discuss medical issues with treating practitioners. The court also ordered that each parent keep the other informed of their contact details and advise of any changes, and to notify the other of any life-threatening emergency medical treatment required by either child. The Independent Children's Lawyer was discharged. The Amended Initiating Application for property settlement was dismissed, and all outstanding applications were dismissed, with the matter removed from the list. The orders included particulars of obligations, consequences of contravention, and assistance available for compliance, as set out in an attached Fact Sheet.

Orders

Orders of the court

Parenting

That all previous parenting Orders or parenting plans be discharged.

That the child B born … 2004 live with the Father.

That the Father have sole parental responsibility for the child’s long term welfare care and development.

That the child spend time with and communicate with the Mother at all times as agreed between the Mother and the Father.

That the consent of the Mother is dispensed with for the Father to obtain an Australia Passport for the child.

That the child be permitted to travel with the Father outside the Commonwealth of Australia at least once per year.

That neither parent denigrate the other Parent to or in the presence or hearing of the children.

That neither parent is to discuss these proceedings to or in the presence or hearing of the children.

That the Mother is to ensure that the child C attends school on a regular basis.

10.

That these Orders be sufficient authority for the Father to obtain copies of C’s school progress reports and attend functions that parents normal attend including parent teacher meetings.

11.

That the Mother provide the names and contact details of C’s treating medical and allied health practitioners and these Orders be sufficient authority for the Father to obtain copies of any medical reports for C and/or discuss any medical problems that C may have with his treating practitioners.

12.

That each parent is to keep the other appraised of their current email address and advise of any change within 48 hours.

13.

That each parent is to advise the other if either child requires any emergency medical treatment of a life threatening nature while in their care.

14.

That the order for the appointment of the Independent Children’s Lawyer be discharged upon the making of these orders.

Property

15.

That the Amended Initiating Application for a final order for property settlement filed 15 October 2014 be dismissed.

Miscellaneous

16.

That all outstanding applications be dismissed and the matter be removed the list of cases awaiting a final determination.

17.

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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