LANGER & FRANKE - [2020] FCCA 1852

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANGER & FRANKE

[2020] FCCA 1852

Catchwords:
FAMILY LAW – Interim proceedings – parenting – whether father is a an unacceptable risk to child – whether risk can be mitigated by orders – where presumption of equal shared parental responsibility does not apply – where parties have consented for numerous orders to be made – where orders can mitigate risk to child – overnight time with father ordered.

Legislation:

Family Law Act 1975 (Cth), ss.10J, 11F, 60B, 60CA, 60CC, 61C, 61DA, 62G, 65D, 65DAA, 68L

Cases cited:

M & M (1988) FLC 91-973

A & A & The Child Representative (1998) 22 FamLR 756

VR & RR [2002] FLC 93-099

Napier & Hepburn (2006) FLC 93-303
Goode & Goode (2006) FLC 93-286
Johnson & Page (2007) FLC 93-344
SS & AH [2010] FamCAFC 13

Marvel & Marvel (2010) 240 FLR 367

MRR & GR [2010] HCA 240
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Grella & Jamieson [2017] FamCAFC 21

Applicant:

MS LANGER

Respondent:

MR FRANKE

File Number:

SYC 3648 of 2018

Judgment of:

Judge Morley

Hearing date:

12 August 2019

Date of Last Submission:

12 August 2019

Delivered at:

Sydney

Delivered on:

15 July 2020

REPRESENTATION

Solicitors for the Applicant:

Ms Siu of As Family Lawyers

Counsel for the Respondent:

Ms Clifford

Solicitors for the Respondent:

Blanchfield Nicholls

Solicitors for the Independent Children's Lawyer:

Mr Samuel of Brian Samuel & Associates

ORDERS

THE COURT ORDERS ON A FINAL BASIS:

That the child X born in 2012 (“X”) live with her mother.

PENDING FURTHER ORDERS, THE COURT ORDERS:

That X spend time with her father as follows:
(a)For a period of 4 months from these orders, each alternate weekend from 9.00 AM on Saturday until 5.00 PM on Sunday, the first occasion to commence on the Saturday second after the making of these orders;
(b)Following the expiration of 4 months from these order, each alternate weekend from 4.00 PM on Friday until 5.00 PM on Sunday;
(c)Each Thursday from 4.00 PM until 8.00 PM, the first such occasion to be the Thursday immediately following the making of these orders;
(d)For 3 consecutive nights in the school holidays at the end of Term 3 in 2020 separate from the time under (a) at times agreed between the parents and failing agreement from 9.00 AM on the first Tuesday of the holidays until 5.00 PM on the following Friday;
(e)For two occasions of 7 consecutive nights during January 2021 at times to be agreed between the parents, with such occasions to be separated by at least 7 consecutive nights;
(f)The father’s time with X under (b) and (c) is suspended for the whole of January 2021;
(g)From the school holidays at the end of term 1 in 2021, for half of each school holiday period, at times agreed between the parents and failing agreement for the first half of school holidays that commence in an even numbered year and for the second…

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 LANGER & FRANKE

Details

AGLC: Langer and Franke [2020] FCCA 1852
Case: [2020] FCCA 1852
Decision Date: 15 July 2020

CaseChat Overview and Summary

In this matter before Judge Morley, the court considered an application concerning the parenting arrangements for the child, X. The dispute centred on whether the father posed an unacceptable risk to the child and, if so, whether such risk could be mitigated through court orders. The court noted that the presumption of equal shared parental responsibility did not apply in this instance.

The legal issues before the court were whether the father presented an unacceptable risk to the child, and if such a risk existed, whether it could be adequately managed and mitigated by the imposition of specific orders. The court was also required to determine the appropriate interim parenting arrangements for X, considering the parties' consent to numerous orders.

Judge Morley reasoned that while concerns about the father's risk to the child were present, these risks could be mitigated through a carefully constructed set of orders. The court applied principles of family law concerning the best interests of the child, acknowledging that the presumption of equal shared parental responsibility was displaced. The court's reasoning led to the making of final orders that X live with her mother, and detailed interim orders for the father to spend time with X, including specific provisions for communication, changeovers, and the father's participation in relevant courses and assessments. The orders also included restraints on physical discipline and denigration of the other parent, and provisions for the exchange of information regarding X's health and schooling.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS:

That the child X born in 2012 (“X”) live with her mother.

PENDING FURTHER ORDERS, THE COURT ORDERS:

That X spend time with her father as follows:

(a) For a period of 4 months from these orders, each alternate weekend from 9.00 AM on Saturday until 5.00 PM on Sunday, the first occasion to commence on the Saturday second after the making of these orders;

(b) Following the expiration of 4 months from these order, each alternate weekend from 4.00 PM on Friday until 5.00 PM on Sunday;

(c) Each Thursday from 4.00 PM until 8.00 PM, the first such occasion to be the Thursday immediately following the making of these orders;

(d) For 3 consecutive nights in the school holidays at the end of Term 3 in 2020 separate from the time under (a) at times agreed between the parents and failing agreement from 9.00 AM on the first Tuesday of the holidays until 5.00 PM on the following Friday;

(e) For two occasions of 7 consecutive nights during January 2021 at times to be agreed between the parents, with such occasions to be separated by at least 7 consecutive nights;

(f) The father’s time with X under (b) and (c) is suspended for the whole of January 2021;

(g) From the school holidays at the end of term 1 in 2021, for half of each school holiday period, at times agreed between the parents and failing agreement for the first half of school holidays that commence in an even numbered year and for the second half of school holidays that commence in an odd numbered year;

(h) The father’s time with X under (b) and (c) is suspended during all school holidays from and including the school holidays at the end of term 1 in 2021 and for (c) will recommence on the Thursday first after the end of all school holidays and for (b) will recommence on the first weekend after the end of school holidays that commenced in an even numbered year and on the second weekend after the end of school holidays that commenced in an odd numbered year;

(i) On Father’s Day from 8.45 AM until 5.00 PM should Father’s Day occur on a day when X would not otherwise spend time with her father pursuant to these orders.

That the father communicate with X by telephone each Monday and Wednesday at some time between 6.45 PM and 7.15 PM, the father to initiate the call.

That all changeovers at the start and end of X’s time with her father shall take place in front of Ms B’s shop at Suburb C, and in the event that the shop closes down, in front of those premises.

That in the event that Mother’s Day occurs on a day when X will be spending time with her father pursuant to these orders, the father’s time will end at 8.45 AM on Mother’s Day.

That without admissions, each of the parents is restrained from physically disciplining X and allowing any other person to physically discipline X.

That without admissions, each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of X.

That without admissions, each of the parents is restrained from allowing X to remain in the presence of, or within X’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.

That whilst X is in his care, the father shall provide X with nutritious food at all regular mealtimes.

10.

That the mother and the father shall keep each other advised in a timely manner with respect to all significant decisions in respect of X’s life and in particular relating to her health and medical needs and schooling.

11.

That in the event that the child suffers any injury, is hospitalised or suffers any significant illness, the parent in whose care X is at the time shall notify the other parent immediately, except in the case of an emergency where they shall do so as soon as is reasonably practicable.

12.

That the mother and the father shall each be entitled to enrol X in and take her to any extracurricular activities during any periods whilst she is in such parent’s care pursuant to these orders NOTING THAT X presently attends sports whilst in the father’s care on Saturday and swimming on Saturdays whilst in the mother’s care as well as sports during the week.

13.

That both parents shall be entitled to attend upon any school functions of X that parents normally attend.

14.

That in the event that the mother has not already done so, she is to do all things necessary and sign all documents required to authorise X’s school to forward to the father directly copies of X’s school reports.

15.

That the parties keep each other advised as to their respective residential addresses and contact details.

16.

That the father is to forthwith enrol in and complete a ‘taking responsibility’ course and an anger management course and provide evidence that he has enrolled in such courses to the mother’s legal representative and to the Independent Child’s Lawyer.

17.

That the father is to forthwith obtain a mental health assessment report form a psychiatrist of his choosing and provide a copy of such assessment to the mother and to the Independent Child’s Lawyer, with such assessment to address the following:

(a) Period of assessment of the father and details as to all appointments attended;

(b) Whether the father suffers from any mental illness;

(d) Any treatment recommended;

(e) The father’s capacity to care for a child and in particular whether there are any risk issues in respect to such capacity;

(f) Any other issues that the expert considers to be relevant.

18.

That the father provide to his psychiatrist referred to in the preceding order a copy of any parenting orders made by the Court as at the date of the interim hearing along with these orders and the Child Inclusive Conference memorandum dated 8 May 2019.

19.

That the parents each attend a post separation parenting course in order to improve their communication with each other.

20.

That each of MR FRANKE born in 1978 and MS LANGER born in 1977 and their servants or agents are restrained from removing or attempting to remove or causing or permitting the removal of the child X born in 2012 (a female) from the Commonwealth of Australia AND it is requested that the Australian Federal Police give effect to this Order by placing the name of the child X born in 2012 (a female) on the Family Law Watch List until further Order of the Court.

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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