Lindberg & Scott - [2009] FamCA 465

FAMILY COURT OF AUSTRALIA

LINDBERG & SCOTT

[2009] FamCA 465

FAMILY LAW – PARENTING - Reconsideration of the issue of time to be spent by a parent with a child when earlier order “reserved” the question - can a parent relitigate the shared time question where previous order reserved that time? - teenage child with strong views in circumstances where the litigation is impacting upon the child

FAMILY LAW – CHILDREN – ORDERS - order made that there be no time with parent - order under s 118 where constant litigation adversely affecting child - section 118 order does not prevent litigant having access to courts and justice - injunctive order preventing parent having access to freedom of information procedures and a request that the relevant authority recognize the order.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Abrahams v Comcare (2006) 93 ALD 147
Attorney-General v Wentworth (1988) 14 NSWLR 481
Briginshaw v Briginshaw (1938) 60 CLR 336
Miller and Harrington [2008] FamCAFC 150
Pitt v OneSteel Reinforcing Pty Ltd[2008] FCA 923
Rice v Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363

APPLICANT:

MS LINDBERG

RESPONDENT:

MR SCOTT

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

13740

2007

DATE DELIVERED:

3 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

13, 14 MAY 2009

REPRESENTATION

THE APPLICANT:

IN PERSON

THE RESPONDENT:

IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR HEBBLEWHITE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

BOWLEN DUNSTAN

Orders

That all extant parenting orders be discharged.
That the father have the sole parental responsibility for the child C born … April 1996.
That the child C live with the father.
That the mother MS LINDBERG not have the right to spend any time with the child.
That the mother, her servants and agents, be and are hereby restrained by injunction from:
(a) Harassing the child;
(b) Telephoning the child;
(c)Knowingly being at or within 200 metres of any school at which the child attends;
(d)Causing any other person to approach or contact the child at any school at which the child attends;
(e)Obtaining or attempting to obtain, any information from any school or government department relating to the child;
(f)Using any government freedom of information procedure of any state or federal department or agency for the purposes of obtaining any information about the child.
AND IT IS REQUESTED that the Education Department for the State of Victoria give effect to this order.
That to give effect to the foregoing, the Independent Children’s Lawyer forthwith provide to:
(a) the Education Department of Victoria;
(b) the principal of the school at which the child attends, and;
(c)the Secretary of the Department of Education and Early Childhood Development
a copy of these orders with a request that each of such persons and authorities give effect to paragraphs (4) and (5) of these orders.
That the father provide to the mother, copies of school reports relating to the child as soon…

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 Lindberg & Scott

Details

AGLC: Lindberg & Scott [2009] FamCA 465
Case: [2009] FamCA 465
Decision Date: 3 June 2009

CaseChat Overview and Summary

In the matter of *Lindberg & Scott*, Justice Cronin of the Family Court of Australia considered a dispute concerning parenting orders for a teenage child. The proceedings involved the mother, MS LINDBERG, and the father, concerning the time the child would spend with each parent. The court was asked to determine whether a parent could relitigate the issue of shared time when a previous order had "reserved" that question, particularly in circumstances where ongoing litigation was adversely affecting the child, who had strong views on the matter.

The court was required to determine the extent to which a prior order reserving the question of time between parents could be revisited, and whether an order under section 118 of the *Family Law Act 1975* (Cth) preventing a parent from having contact with a child also precluded them from accessing justice or information about the child. Furthermore, the court had to consider the impact of constant litigation on a teenage child and the appropriate measures to protect the child's welfare.

Justice Cronin reasoned that the court retained jurisdiction to reconsider parenting arrangements, even if a previous order had reserved the issue of time, especially when the child's welfare was at stake. The court found that the ongoing litigation was having a detrimental effect on the child, justifying a significant alteration of existing orders. The court applied principles of child welfare, noting that a section 118 order, while restrictive, did not prevent a litigant from accessing the courts or seeking justice. The court also considered the child's expressed views.

Consequently, the court made extensive orders discharging all extant parenting orders. The father was granted sole parental responsibility and the child was to live with him. The mother was prohibited from spending any time with the child and was restrained by injunction from harassing or contacting the child, including attending near the child's school or attempting to obtain information about the child through any means, including freedom of information procedures. The court also imposed a restriction on the mother instituting further parenting proceedings without leave and ordered that school reports be provided to the mother with identifying details expunged. The Independent Children's Lawyer was discharged from the proceedings.

Orders

Orders of the court

That all extant parenting orders be discharged.

That the father have the sole parental responsibility for the child C born … April 1996.

That the child C live with the father.

That the mother MS LINDBERG not have the right to spend any time with the child.

That the mother, her servants and agents, be and are hereby restrained by injunction from:

(a) Harassing the child;

(b) Telephoning the child;

(d) Causing any other person to approach or contact the child at any school at which the child attends;

(e) Obtaining or attempting to obtain, any information from any school or government department relating to the child;

(f) Using any government freedom of information procedure of any state or federal department or agency for the purposes of obtaining any information about the child.

AND IT IS REQUESTED that the Education Department for the State of Victoria give effect to this order.

That to give effect to the foregoing, the Independent Children’s Lawyer forthwith provide to:

(a) the Education Department of Victoria;

(b) the principal of the school at which the child attends, and;

a copy of these orders with a request that each of such persons and authorities give effect to paragraphs (4) and (5) of these orders.

That the father provide to the mother, copies of school reports relating to the child as soon as practicable after they are received by him but that he have the right before delivering them to the mother, to expunge any details which might identify the residence and/or school of the child.

That the Independent Children’s Lawyer be discharged from the proceedings as and from 4.00pm on 1 July 2009.

Without leave of a judge of the Family Court of Australia, MS LINDBERG must not institute any proceedings under the Family Law Act 1975 (Cth) (“the Act”) in any court having jurisdiction under the said Act seeking parenting orders under Part VII of the Act.

10.

Any application for the leave referred to in paragraph (9) is to be listed before a judge of the Family Court of Australia in chambers without appearance supported by an affidavit and unless otherwise ordered, is not to be served upon the father or the Independent Children’s Lawyer.

11.

That all extant applications be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.

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.

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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