Lardon and Cool - [2009] FamCA 73

FAMILY COURT OF AUSTRALIA

LARDON & COOL

[2009] FamCA 73

FAMILY LAW – CHILDREN – Interim orders suspended – With whom the Child lives after release from hospital –Adherence of parents to daily treatment and care – Wishes of the 15 year old Child

APPLICANT:

Ms Lardon

RESPONDENT:

Mr Cool

FILE NUMBER:

BRF

10334

2000

DATE DELIVERED:

23 January 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

20 January 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr S Page, solicitor from Harrington Family Lawyers appeared for the Applicant Mother

COUNSEL FOR THE RESPONDENT:

Mr Burridge of Counsel appeared for the Respondent Father

SOLICITORS FOR THE RESPONDENT:

John Hawes & Associates Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Terrance, solicitor of Legal Aid appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

The child, … born … October 1994 to live with the Mother during the period of rehabilitation until his treating doctors at the Royal Children’s Hospital give directions/instruction for the construction of a prosthetic.
During the period provided for in paragraph 1 the Father is to spend time with the child from 9.00 am to 5.00 pm each Saturday and Sunday in the Brisbane area.
Changeover for times in paragraph 2 is to be at the entrance to the Royal Children’s Hospital or such other venue as the parties may agree in writing.
From the time directions/instruction given in accordance with paragraph 1 hereof the child is to spend two (2) weeks with his Father in the T area. The Father is to be responsible for collecting the child from Brisbane and returning the child to Brisbane. The period of time the Father has is to cease two (2) weeks after the child is collected and taken to T.
At the expiration of two (2) weeks the child is to be returned to the Mother’s care until the child’s treating medical practitioners certify he is comfortable using the interim prosethic.
During the period referred to in paragraph 5 hereof the Father is to spend time with the child from 9.00 am to 5.00 pm on Saturday and 9.00 am to 5.00 pm on Sunday.
The Father to have telephone, email and Skype/webcam communication (if available) with the child at all reasonable times the child is in the care of the Mother.
The Mother is to have telephone, email and Skype/webcam communication (if available) with the child at all reasonable times the child is in the care of the Father.
The Family Consultant is requested to explain to the child the effect of the Orders made this day and the reasons for such Orders.
Pursuant to Section 65L of the Family Law Act compliance with these interim parenting Orders is to be supervised by the Family Consultant.
The Family Consultant and the Independent Children’s Lawyer be at liberty to seek and receive progress reports from the relevant health and allied heath practitioners treating the child with the Independent Children’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 Lardon and Cool

Details

AGLC: Lardon and Cool [2009] FamCA 73
Case: [2009] FamCA 73
Decision Date: 23 January 2009

CaseChat Overview and Summary

This matter concerned interim parenting orders made by Barry J in the Family Court of Australia. The proceedings involved the parents, Lardon and Cool, and their child, born in October 1994. The dispute centred on the living arrangements and time spent between the child and each parent, particularly in light of the child's ongoing medical treatment.

The court was required to determine the interim parenting arrangements for the child, considering the child's rehabilitation and medical treatment at the Royal Children’s Hospital. Key issues included establishing where the child would live during this rehabilitation period, the father's time with the child, and the arrangements for the child's care following the fitting of a prosthetic. The court also needed to address communication between the parents and the child, the supervision of compliance with the orders, and the liberty of the Family Consultant and Independent Children’s Lawyer to obtain medical reports and seek further hearings if necessary.

Barry J made orders by consent, establishing a framework for the child's care during a period of rehabilitation. The child was to live with the mother during this phase, with the father having defined weekend time with the child in the Brisbane area. Specific provisions were made for the child to spend time with the father in the T area following the fitting of an interim prosthetic, with subsequent return to the mother's care until the child was comfortable with the prosthetic. The orders also stipulated joint parental responsibility, communication rights for both parents, and the supervision of compliance by the Family Consultant. The court further directed that the Family Consultant explain the orders to the child and granted liberty to the Independent Children’s Lawyer to seek further interim or final hearing dates. The matter was adjourned for review before Justice O’Reilly.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER THAT:

The child, … born … October 1994 to live with the Mother during the period of rehabilitation until his treating doctors at the Royal Children’s Hospital give directions/instruction for the construction of a prosthetic.

During the period provided for in paragraph 1 the Father is to spend time with the child from 9.00 am to 5.00 pm each Saturday and Sunday in the Brisbane area.

Changeover for times in paragraph 2 is to be at the entrance to the Royal Children’s Hospital or such other venue as the parties may agree in writing.

From the time directions/instruction given in accordance with paragraph 1 hereof the child is to spend two (2) weeks with his Father in the T area. The Father is to be responsible for collecting the child from Brisbane and returning the child to Brisbane. The period of time the Father has is to cease two (2) weeks after the child is collected and taken to T.

At the expiration of two (2) weeks the child is to be returned to the Mother’s care until the child’s treating medical practitioners certify he is comfortable using the interim prosethic.

During the period referred to in paragraph 5 hereof the Father is to spend time with the child from 9.00 am to 5.00 pm on Saturday and 9.00 am to 5.00 pm on Sunday.

The Father to have telephone, email and Skype/webcam communication (if available) with the child at all reasonable times the child is in the care of the Mother.

The Mother is to have telephone, email and Skype/webcam communication (if available) with the child at all reasonable times the child is in the care of the Father.

The Family Consultant is requested to explain to the child the effect of the Orders made this day and the reasons for such Orders.

10.

Pursuant to Section 65L of the Family Law Act compliance with these interim parenting Orders is to be supervised by the Family Consultant.

11.

The Family Consultant and the Independent Children’s Lawyer be at liberty to seek and receive progress reports from the relevant health and allied heath practitioners treating the child with the Independent Children’s Lawyer to distribute copies of these reports to the parties’ legal representatives.

12.

Should any information from such reports suggest that the child’s progress is being compromised in any fashion all parties have leave to re-list this matter on

twenty-four (24) hours notice to the other parties.

13.

The Independent Children’s Lawyer is at liberty to approach Senior Registrar Turner for the purpose of allocating a further interim hearing and/or final hearing dates when the Independent Children’s Lawyer is of the view the matter is ready to proceed to such further interim or final hearing.

14.

Both parties to have joint parental responsibility.

IT IS ORDERED BY CONSENT THAT:

15.

Paragraphs 3, 4, 5, 7 and 8 of the consent interim parenting Orders made on

5 March 2008

be discharged.

IT IS ORDERED THAT:

16.

The matter is adjourned for review of the progress of this matter and any necessary directions before the Honourable Justice O’Reilly at 10.00 am on 24 February 2009 in the Brisbane Registry of the Family Court of Australia.

17.

Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to 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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