MEIER & MEIER - [2018] FCCA 3978

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEIER & MEIER

[2018] FCCA 3978

Catchwords:
FAMILY LAW – Parenting – sole parental responsibility – undefended hearing – self-represented litigant – allegations of family violence – views of the children – costs of the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 65DAA, 65DAC

Child Support (Assessment) Act 1989 (Cth)

Cases cited:

Harrison v Woollard (1995) 18 Fam LR 788

Re JJT; Ex parte Victoria Legal Aid (M74/1997) [1998] HCA 44

Allesch v Maunz [2000] HCA 40

Re R & R: Children’s Wishes [2002] FamCA 43

Mazorski & Albright [2007] FamCA 520

Gordon & Gordon [2015] FamCA 616

Applicant:

MR MEIER

Respondent:

MS MEIER

File Number:

BRC 8279 of 2017

Judgment of:

Judge Harman

Hearing date:

30 November 2018

Date of Last Submission:

30 November 2018

Delivered at:

Brisbane

Delivered on:

30 November 2018

REPRESENTATION

No appearance for the Applicant

The Respondent appearing in person

Counsel for the Independent Children's Lawyer:

Mr Cooper

Solicitors for the Independent Children's Lawyer:

N R Barbi

ORDERS

Discharge all prior parenting Orders with respect to the children [X] born … 2005, [Y] born … 2003 and [Z] born … 2001 (“the children”).
The children shall live with the Mother.
The Mother have sole parental responsibility for the children and not be required to confer with the Father regarding any long-term decision to be made regarding the care, welfare and development of the children.
Mr Meier shall spend time and communicate with the children at such times, and by such means and subject to such terms and conditions as may be agreed between the parents from time to time and not otherwise.
The children communicate with the Father at such times as the children may reasonably wish to instigate such communication, with the Mother’s consent and knowledge.
The Father communicate with the children at such times as the children are prepared to receive his communication with the Mother’s consent and knowledge.
This Order shall be an authority directed to the children’s school or school’s teachers, to provide each parent with a copy of school reports, school letters, school newsletters, details of school photographs and to discuss with either parent all matters pertaining to the child’s education and well-being, as they request from time to time and ensure that the school records include the Mother as the person to be notified when necessary of all school and emergency matters and the Mother as the person to solely make all decisions regarding the children’s educational future.
This Order shall be an authority directed to the children’s doctor or doctors and other medical and dental practitioners to provide each parent with all information including documents relating to the health of the child and to discuss with either parent all matters pertaining to the child’s health and well-being as they may request from time to time with the Mother to solely make all decisions concerning the child’s health and well-being.
Each parent be responsible for all costs of and…

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 MEIER & MEIER

Details

AGLC: MEIER & MEIER [2018] FCCA 3978
Case: [2018] FCCA 3978
Decision Date: 30 November 2018

CaseChat Overview and Summary

In the matter of *Meier & Meier*, heard before Judge Harman, the dispute concerned parenting arrangements for three children. The proceedings were undefended, with the father, Mr Meier, representing himself. The case involved allegations of family violence, the views of the children, and the costs associated with the Independent Children’s Lawyer.

The court was required to determine the appropriate parenting orders, specifically addressing issues of parental responsibility, the children's living arrangements, and the nature and extent of the father's time and communication with the children. Further, the court needed to consider the role of the Independent Children’s Lawyer and the allocation of their costs.

The court ordered that prior parenting orders be discharged. The children were to live with the Mother, who was granted sole parental responsibility, meaning she would not be required to confer with the Father on long-term decisions. The Father's time and communication with the children were to be as agreed between the parents, or at the children's instigation with the Mother's consent and knowledge. The court also issued detailed orders regarding communication between parents and with schools and medical practitioners, emphasizing the Mother's sole decision-making authority in educational and health matters. The Independent Children’s Lawyer was discharged with thanks, and the Father was ordered to pay their costs fixed at $8,632.05 by a specified date, with provisions for recovery and interest in case of non-payment. The Father was also granted a limited time to apply to reopen the proceedings.

Orders

Orders of the court

Discharge all prior parenting Orders with respect to the children [X] born … 2005, [Y] born … 2003 and [Z] born … 2001 (“the children”).

The children shall live with the Mother.

The Mother have sole parental responsibility for the children and not be required to confer with the Father regarding any long-term decision to be made regarding the care, welfare and development of the children.

Mr Meier shall spend time and communicate with the children at such times, and by such means and subject to such terms and conditions as may be agreed between the parents from time to time and not otherwise.

The children communicate with the Father at such times as the children may reasonably wish to instigate such communication, with the Mother’s consent and knowledge.

The Father communicate with the children at such times as the children are prepared to receive his communication with the Mother’s consent and knowledge.

This Order shall be an authority directed to the children’s school or school’s teachers, to provide each parent with a copy of school reports, school letters, school newsletters, details of school photographs and to discuss with either parent all matters pertaining to the child’s education and well-being, as they request from time to time and ensure that the school records include the Mother as the person to be notified when necessary of all school and emergency matters and the Mother as the person to solely make all decisions regarding the children’s educational future.

This Order shall be an authority directed to the children’s doctor or doctors and other medical and dental practitioners to provide each parent with all information including documents relating to the health of the child and to discuss with either parent all matters pertaining to the child’s health and well-being as they may request from time to time with the Mother to solely make all decisions concerning the child’s health and well-being.

Each parent be responsible for all costs of and incidental to obtaining a copy of any information or documentation they may request from time to time pursuant to orders 7 and 8 herein and each parent provide the school and doctor with their current contact details and address.

10.

Neither parent will discuss adult issues or court proceedings with, or in the presence of, the children and the parents shall take all steps to remove the children from the presence of any third party engaging in such discussions.

11.

During the times the children are with either parent that parent shall respect the privacy of the other parent and the children and not question the children about the personal life of the other parent or the household in which the children spend time.

12.

In the event that they are not already doing so, each parent is to encourage and foster the children’s relationship with the other parent.

13.

Without admission, neither parent abuse, insult, criticise or denigrate the other parent, their respective partners, their family or their friends or any other person, nor expose the children to the conflict between the parents, in the presence of, or hearing of, the children, and will use their best endeavours to ensure that no-one else does so, and will remove the said children from any environment where such behaviour is occurring.

14.

In the event that a parent re-partners in a full-time live-in relationship they will participate in couples counselling to consider the adjustment challenges for adults and children on formation of a blended family unit.

15.

Each parent shall keep the other informed of the details of the children’s treating doctors and other medical professionals and within seven (7) days of the date of this order, each parent will provide to the other, in writing and via email, a full list of treating doctors and other medical practitioners which the children are attending and for the purposes of same, each parent is authorised to provide a copy of these orders to those treaters.

16.

Each parent shall advise the other as soon as is reasonably practicable, of any serious illness, hospitalisation, accident or medical emergency that relates to the child(ren) and the details of any treating doctors and medical facility the child(ren) is taken to. The parents are to follow the advice and treatment of the doctors until such time as the emergency has passed and as to all decisions to be made in consultation with the treaters, the treaters are to be told that the Mother has sole parental responsibility to make all decisions concerning the treatment that may be required. The parents are authorised to show the treaters a copy of these orders.

17.

Each parent shall keep the other parent informed as soon as is practicable as to any significant medical or health related issue concerning the child(ren).

18.

The Mother and the Father keep each other informed as to any changes in their email and contact telephone numbers and advise the other in writing within forty-eight (48) hours of any such change.

19.

For the purposes of information exchange in accordance with these Orders, the parents shall register with a mobile phone communication application to advise of any:

(a) Time and communication arrangements for the children with the Father;

(b) Non-emergency medical, medication or dental needs of the children;

(c) Cost and requested contribution to any treatment required by the child as well as any and all school needs of the child and the account to be contributed by each party to such treatments and needs;

(d) Extra-curricular activities it is proposed the child attend together with the cost of and details of such attendance and the contribution requested as well as the agreement or otherwise of the other parent and the level of contribution to be made;

(e) Travel intended to be undertaken by the parent with the child; or,

(f) Such other events as affect the welfare of the child with the originals of the communication book, when full, to be stored with the child’s passport.

20.

The Independent Children’s Lawyer to be discharged with the Court’s thanks.

21.

Mr Meier shall pay the costs of the Independent Children’s Lawyer fixed in the sum of $8,632.05, such costs to be paid no later than close of business 28 December 2018 and failing payment by that date:

(a) The Independent Children’s Lawyer or Legal Aid Queensland shall be at liberty to commence proceedings in a Court of competent jurisdiction to recover that sum together with interest accrued there upon calculated from 28 December 2018 until the date of payment and costs of those proceedings;

(b) Interest shall accrue upon that sum from 28 December 2018 at the rate fixed by the Federal Circuit Court Rules 2001 from time to time.

22.

Pursuant to rule 16.05 of the Federal Circuit Court Rules 2001, Mr Meier is entitled to make an Application to reopen the proceedings and be heard by close of business 28 December 2018.

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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