Larvin and Larvin (No. 2) - [2009] FamCA 475

FAMILY COURT OF AUSTRALIA

LARVIN & LARVIN (NO. 2)

[2009] FamCA 475

FAMILY LAW – CHILDREN – Parental responsibility – Psychiatric condition of mother

Family Law Act 1975 (Cth)

APPLICANT:

Mr Larvin

RESPONDENT:

Ms Larvin

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

2557

2005

DATE DELIVERED:

1 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

28 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR GEDDES QC WITH MS LANE

SOLICITOR FOR THE APPLICANT:

FORTE FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT:

MR MAWSON SC

SOLICITOR FOR THE RESPONDENT:

GALBALLY & O'BRYAN

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

That pursuant to the provisions of Rule 6.10 of the Family Law Rules 2004, Ms W be appointed as a case guardian for the wife Ms Larvin in the further conduct of these proceedings.
That the further hearing of the husband’s application in relation to the adjustment of property be adjourned to a final hearing on 17 June 2009.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.
That the children X born … August 1995, O born … July 1997 and C born … February 2001 live with the husband.
That the husband have sole responsibility for the children.
That the husband be at liberty to remove the children from the Commonwealth of Australia for the purposes of a holiday, school excursion, or school exchange.
That the husband is by these orders, authorised and permitted, to apply for and receive an Australian passport for each of the children without first obtaining the consent of the wife.
That the wife spend time with the children for four hours on one day during each school term holidays on a date and time advised to her by the husband in writing, four weeks prior to the commencement of each school term holiday.
That the wife’s time with the children be conditional upon:
(a)the time being supervised by a supervisor nominated by the wife and approved by the Independent Children’s Lawyer, or after her discharge from that role, the husband;
(b)the wife having paid the costs of the supervisor seven days in advance of each visit;
(c)the wife advising the supervisor at least 72 hours prior to each visit that she will exercise that time with the children;
(d)the wife not consuming alcohol for a period of 24 hours prior to, or during, any such time that she spends with the children and she being breathalysed by the supervisor immediately prior to the commencement of that time (but in the absence of the children) and that she return a blood alcohol reading by the breathalyser of zero;
(e)the wife not being adversely affected by any drugs or medication during any such time; and
(f)the wife not denigrating the husband or his family to the children or in the presence or…

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 Larvin and Larvin (No. 2)

Details

AGLC: Larvin and Larvin (No. 2) [2009] FamCA 475
Case: [2009] FamCA 475
Decision Date: 1 June 2009

CaseChat Overview and Summary

In the matter of *Larvin and Larvin (No. 2)*, Justice Cronin of the Family Court of Australia made orders concerning the welfare of the parties' children and the progression of property adjustment proceedings. The proceedings involved a husband and wife, with the court addressing issues related to the children's living arrangements, parental responsibility, and the wife's contact with them, as well as the husband's application for property adjustment.

The court was required to determine the appropriate orders for the children's residence, the husband's sole responsibility for them, and the conditions under which the wife could spend time with the children. Additionally, the court considered the husband's liberty to travel with the children and obtain passports for them, and the wife's proximity to the children's school and other locations. The court also addressed the appointment of a case guardian for the wife and the continuation of the property adjustment proceedings.

Justice Cronin ordered that the children live with the husband and that he have sole responsibility for them, authorising him to obtain Australian passports for the children without the wife's consent. The wife's time with the children was significantly restricted and made conditional upon supervision, advance payment for the supervisor, and strict prohibitions against alcohol and drug consumption, as well as denigration of the husband. The wife was also restrained from entering within 100 metres of the children's school or approaching them elsewhere, except as permitted by the orders. The Independent Children's Lawyer was discharged, and Ms W was appointed as a case guardian for the wife. The property adjustment hearing was adjourned to a final hearing on 17 June 2009, with the court noting the parties' intention to convene a conference to explore resolution.

Orders

Orders of the court

That pursuant to the provisions of Rule 6.10 of the Family Law Rules 2004, Ms W be appointed as a case guardian for the wife Ms Larvin in the further conduct of these proceedings.

That the further hearing of the husband’s application in relation to the adjustment of property be adjourned to a final hearing on 17 June 2009.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

That the children X born … August 1995, O born … July 1997 and C born … February 2001 live with the husband.

That the husband have sole responsibility for the children.

That the husband be at liberty to remove the children from the Commonwealth of Australia for the purposes of a holiday, school excursion, or school exchange.

That the husband is by these orders, authorised and permitted, to apply for and receive an Australian passport for each of the children without first obtaining the consent of the wife.

That the wife spend time with the children for four hours on one day during each school term holidays on a date and time advised to her by the husband in writing, four weeks prior to the commencement of each school term holiday.

That the wife’s time with the children be conditional upon:

(a) the time being supervised by a supervisor nominated by the wife and approved by the Independent Children’s Lawyer, or after her discharge from that role, the husband;

(b) the wife having paid the costs of the supervisor seven days in advance of each visit;

(c) the wife advising the supervisor at least 72 hours prior to each visit that she will exercise that time with the children;

(d) the wife not consuming alcohol for a period of 24 hours prior to, or during, any such time that she spends with the children and she being breathalysed by the supervisor immediately prior to the commencement of that time (but in the absence of the children) and that she return a blood alcohol reading by the breathalyser of zero;

(e) the wife not being adversely affected by any drugs or medication during any such time; and

(f) the wife not denigrating the husband or his family to the children or in the presence or hearing of the children.

10.

That the wife be restrained by herself, her servants or agents from:

(a) entering upon or coming within 100 metres of any place, at which the children may attend school; and

(b) approaching the children in any other place, save as in accordance with these orders.

11.

That the appointment of the Independent Children’s Lawyer be forthwith discharged.

12.

That 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.

AND THE COURT NOTES

A. That the parties intend to convene a conference to explore the possibility of resolving all issues in dispute prior to the return date; and

B. The adjourned hearing will be subject to any order of Justice Cronin to proceed to a final hearing on the adjourned date.

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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