FAMILY COURT OF AUSTRALIA
| MARSDEN & MARSDEN | [2018] FamCA 157 |
| FAMILY LAW – CHILDREN – Parental responsibility – With whom the children shall live and spend time – Separation of siblings – Where the two eldest children have been living with the father and the youngest child has been living with the mother – Where both parents seek sole parental responsibility for all three children and for the children to live with them – Where there are concerns about the mother’s parenting capacity in relation to the two eldest children – Where the mother’s relationship with the youngest child is a protective factor for the child – Orders made for the father to have sole parental responsibility for the two eldest children and the mother to have sole parental responsibility for the youngest child – Orders made for the two eldest children to live with the father and the youngest child to live with the mother – Orders made permitting the children to determine when to spend time with the non-resident parent on reaching age thirteen. FAMILY LAW – FAMILY VIOLENCE – Where there is a positive finding of coercive and controlling family violence by the father – Where conflict between the parents is significantly impacting the children – Where the parents are historically non-compliant with orders – Where failing to return the youngest child to the mother in accordance with orders constituted abuse – Orders made for the youngest child to spend time with the father every second weekend until the age of thirteen – Orders made for a recovery order to lie in the Registry of the Family Court and for suspension of the father’s time with the youngest child if he fails to return her at the conclusion of the weekend. | |
| Family Law Act 1975 (Cth), ss 43, 60B, 60CA, 60CC, 61DA, 65DAA, 117 United Nations Convention on the Rights of the Child, art 19 | |
| B and B (1993) FLC 92-357 Gahen & Gahen (No 2) [2013] FamCA 936 Godfrey & Sanders [2007] FamCA 102 In the marriage of I and I (No. 2) (1995) FLC 92-625 Marsden and Marsden [2016] FamCA 220 Fogarty, J, ‘Unacceptable risk – A return to basics’, (2006) 20 Australian Journal of Family Law, 249 |
| APPLICANT: | Ms Marsden |
| RESPONDENT: | Mr Marsden |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | SYC | 6980 | of | 2009 |
| DATE DELIVERED: | 16 March 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland… |
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- AGLC
- MARSDEN & MARSDEN [2018] FamCA 157
- Case
- [2018] FamCA 157
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children, specifically addressing the separation of siblings, the parenting capacity of each parent, and the impact of parental conflict on the children. Key legal issues included the allocation of sole parental responsibility, the determination of where each child should live, and the arrangements for the children to spend time with the non-resident parent. The court also had to consider findings of family violence and the historical non-compliance with court orders by the parents.
McClelland J applied the principles enshrined in the *Family Law Act 1975* (Cth), including sections 43, 60B, 60CA, 60CC, 61DA, and 65DAA, and considered Article 19 of the United Nations Convention on the Rights of the Child. The court found concerns regarding the mother's parenting capacity in relation to M and A, while acknowledging her relationship with V as a protective factor. Conversely, the court made a positive finding of coercive and controlling family violence by the father and noted the significant impact of parental conflict on the children. The reasoning led to orders discharging previous parenting orders and establishing separate parental responsibility and living arrangements for the children. The father was granted sole parental responsibility for M and A, with M and A to live with him. The mother was granted sole parental responsibility for V, with V to live with her.
The court made specific orders for the children to spend time with the non-resident parent, allowing M and A to determine their time with the mother based on their wishes. For V, time with the father was ordered to be supervised until she reaches 13 years of age, with specific handover arrangements and a recovery order in place should the father fail to return V. The father was ordered to pay for the supervision costs. Furthermore, the court imposed restraints on both parents regarding communication and behaviour towards each other and the children, and ordered the father to pay half the costs of the Independent Children’s Lawyer.
Orders
Orders of the court
Previous orders
1.
All previous parenting orders in relation to the children, M born … 2002 (“M”), A born … 2004 (“A”) and V born … 2007 (“V”) are discharged.
Parental responsibility
2.
The mother shall have sole parental responsibility for V.
3.
The father shall have sole parental responsibility for M and A.
Live with
4.
V shall live with the mother.
5.
M and A shall live with the father.
Spend time
M and A
6.
M and A shall spend time with the mother in accordance with their wishes and at times arranged directly between either of them and the mother.
7.
The father is restrained from doing anything to prevent, restrict or hinder M and A from spending time with the mother in accordance with their wishes.
V
8.
Until she reaches 13 years of age V shall spend time with the father as follows:
(a) Each alternate weekend from after school Friday until before school Monday (extended to Tuesday if Monday is a public holiday) such time to commence on the first Friday following the making of these orders;
9.
That for the purposes of the father’s time with V the following shall apply:
(a) on school days, handover shall occur at V’s school;
(b) on non-school days, handover shall occur at Suburb AA McDonalds and shall be supervised by BB Group;
(c) such supervised change over, in accordance with order 9(b) above, shall continue until V attains the age of 13 years.
10.
Once V turns 13 years of age she shall spend time with the father in accordance with her wishes and at times arranged directly between herself and the father.
Supervision
11.
The parties shall do all things necessary to ensure that, in respect to changeovers that occur at Suburb AA McDonalds, BB Group is available to supervise such handover and for this purpose, all costs associated with supervision shall be paid for by the father.
Restraints
12.
The father is restrained from attending V’s school on days other than the days he is to collect and return V pursuant to these orders.
13.
The mother shall be restrained from seeking to remove V from school early on the days on which V is to be collected from school by the father pursuant to these orders.
Substitute time
14.
In the event that V is not in attendance at school on a day the father is to collect her, and that as a result V does not spend time with the father, then V shall spend make up time with the father the following weekend from after school Friday until before school Monday.
Suspension of time
15.
That pursuant to section 67Q of the Family Law Act 1975 (Cth) (“the Act”), a recovery order and warrant be issued to the Marshall, all officers or agents of the Australian Federal Police and all officers of the police forces of all the states and territories of the Commonwealth of Australia (officers and agents) authorising and directing them to:
(a) at any time and with such assistance as they require and if necessary by force to:
(i) stop and search any vehicle, vessel or aircraft; and
(ii) enter and search any premises or place;
(iii) where there may be reasonable cause to believe that the father or V born …2007 may be found;
(iv) and to take possession of the child V.
Upon recovery of the child the officers and agents are, pursuant to section 67Q(d) of the Act, directed to deliver the child to the child’s mother.
(b) The officers and agents are authorised and directed to arrest, without warrant, any person who acts in breach of these orders.
16.
That the recovery order shall lie in the Registry of the Family Court at Sydney for a period of twelve months from the date of these orders.
17.
That in the event the father fails to return V to the mother at the conclusion of her time with the father and the father fails to comply with a request by the mother to deliver V to her at a nominated time and place, the mother shall be at liberty to approach the Registrar of the Court to activate the recovery of the child pursuant to these orders.
18.
In the event the father fails to return V at the conclusion of her time with him, in accordance with these orders, the father’s time with V shall thereafter be suspended.
Information sharing
19.
The father shall authorise the schools that M and A attend to provide copies of all school reports and progress notes to the mother and shall ensure that reports from any treating health professional for M and A to be provided to the mother within 7 days of their receipt by him.
20.
The Mother shall authorise the schools that V attends to provide copies of all school reports and progress notes to the father and shall ensure that reports from any treating health professional for V be provided to the father within 7 days of their receipt by her.
21.
Should M or A require urgent medical attention, or be admitted to hospital, the father shall notify the Mother as soon as practicable.
22.
Should V require urgent medical attention or be admitted to hospital the mother shall notify the father as soon as practicable.
23.
The mother shall notify the father in writing of any decision made in the exercise of parental responsibility for V, including but not limited to; the high school V will attend, any application for a passport and any overseas travel.
24.
The father shall notify the mother in writing of any decision made in the exercise of parental responsibility for M and A including, but not limited to; any application for passports and any overseas travel.
25.
Each party shall provide the other no less than 8 weeks written notice of any plan to travel overseas with any of the children including a copy of itinerary.
Communication between the parties
26.
Each party is restrained from communicating with the other except in relation to the welfare of the children or as set out in these orders and all such communication shall be in writing.
Additional Restraints and Injunctions
27.
Each party is restrained by injunction from:
(a) abusing, insulting, or denigrating the children or the other party or members of the other party’s extended family or household to, or in the presence or hearing of any, of the children and from permitting another person to do so;
(b) discussing any allegation made or evidence given in these proceedings to, or in the presence or hearing of, any of the children and from permitting another person to do so;
(c) physically disciplining or striking the children;
(d) questioning the children, or discussing with them the appropriateness of the other party’s behaviour or parenting practices or parenting matters;
(e) presenting the children to NSW police for the purposes of initiating or making a complaint to police about the other party, other than as may be requested by NSW police.
28.
During periods that V is spending time with the father, the father shall ensure that V has her own bedroom and her own bed.
29.
That either party is at liberty to provide a copy of these orders to the school V may attend from time to time.
Costs
30.
That the father is to pay one half of the liability of costs for the Independent Children’s Lawyer.
31.
That the Independent Children’s Lawyer is hereby, discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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