Moers & Sands - [2011] FMCAfam 47

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOERS & SANDS

[2011] FMCAfam 47

FAMILY LAW – Children – child aged 7 – equal shared parental responsibility – high conflict between parents – final hearing commenced but unable to be completed in the time allocated – arrangements for care of child until final hearing can be concluded – evidence taken from court appointed expert and the principal and the classroom teacher at the child’s school – child said to be emotionally and educationally at risk – nature of neglect – significance of long standing arrangements for care of child – best interests.

Family Law Act 1975, ss.60B; 60CC; 61DA; 65DAA; 65DAC; 65DAE; 68LA

Moers & Sands [2007] FMCAfam 1067
Moers & Sands [2009] FMCAfam 1354
Goode & Goode (2006) FLC93-286

MRR v GR [2010] HCA4

Slater & Light [2010] FamCAFC 1

Applicant:

MR MOERS

Respondent:

MS SANDS

File Number:

ADC 2864 of 2007

Judgment of:

Brown FM

Hearing dates:

7, 8, 9 & 10 December 2010

Date of Last Submission:

10 December 2010

Delivered at:

Adelaide

Delivered on:

24 January 2011

REPRESENTATION

Counsel for the Applicant:

Ms Basheer

Solicitors for the Applicant:

Clelands

Counsel for the Respondent:

Mr Childs

Solicitors for the Respondent:

P R Dixon & Co

Counsel for the Independent Children’s Lawyer:

Ms Lindsay

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission of SA

ORDERS

UPON NOTING that the proceedings are adjourned part heard for completion on the 28, 29 and 30 June 2011 and 1 July 2011.

UNTIL FURTHER OR OTHER ORDER

The father have parental responsibility for making decisions concerning the health and education of the child of the relationship [X] born in 2002 (herein after referred to as the “child”).
The child live with the father.
The child continue to attend [omitted School] for his primary school education.
The father be substituted for the mother as the enrolling parent at [omitted School].
The father arrange with the Principal of [omitted School] for the child to be accepted back into the Out of Hours School Care program offered by the school.
The father take all steps necessary to provide the Principal of [omitted School] with all authorities necessary to enable and permit the child to:
(a)Engage with the school counsellor;
(b)Engage in internet learning; and
(c)Engage in any other appropriate learning activity as recommended by the school included but not limited to the Rainbow Reading Program.
The paternal grandmother be at liberty to attend and collect and deliver the child to and from school at the usual time.
The father take all necessary steps to liaise with the Principal of [omitted School] and the appropriate officer at Centacare to obtain information as to the identity of an appropriate child psychologist for the child to attend upon.
The father take all necessary steps to obtain a mental health plan referral for the child so that he can commence counselling with such appropriately qualified expert as identified to the father either by the Principal of [omitted School] or Centacare…

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 Moers & Sands

Details

AGLC: Moers & Sands [2011] FMCAfam 47
Case: [2011] FMCAfam 47
Decision Date: 24 January 2011

CaseChat Overview and Summary

In the Family Court of Australia, the case of Moers & Sands involved the parents of a child born in 2002, with the primary focus being the arrangement of parental responsibilities and visitation rights. The father sought parental responsibility for decisions related to the child's health and education, as well as primary custody, while the mother contested these claims and sought visitation rights. The court had to determine the best interests of the child in terms of parental responsibility, primary residence, and the specifics of the visitation schedule.

The legal issues before the court included determining the allocation of parental responsibility for health and education decisions, establishing the primary residence of the child, setting a visitation schedule for the non-resident parent, and issuing injunctions to prevent certain behaviours that could be detrimental to the child. Additionally, the court needed to address the child's educational continuity, psychological support, and the logistics of parent-child communication and handovers.

The court ruled in favour of the father, granting him parental responsibility for health and education decisions and awarding primary custody of the child. The child was to live with the father and continue attending the same school. The mother was granted specific visitation times, including during school terms and short holiday periods, with all handovers occurring at designated children's contact centres or police station foyers. The court also issued injunctions to both parents, prohibiting them from discussing the proceedings in the child's presence, engaging in harassment or abuse towards each other or the respective family members, and attending sports events when the child was in the other parent's care. Furthermore, the court ordered that both parents facilitate the child's communication with the other parent and mandated psychological evaluations and counselling for the child.

The orders reflect the court's emphasis on maintaining the child's educational continuity, providing psychological support, and ensuring safe and supervised handovers. The court's decision aimed to protect the child's well-being and foster a stable environment amidst the parents' dispute.

Orders

Orders of the court

UPON NOTING that the proceedings are adjourned part heard for completion on the 28, 29 and 30 June 2011 and 1 July 2011.

UNTIL FURTHER OR OTHER ORDER

The father have parental responsibility for making decisions concerning the health and education of the child of the relationship [X] born in 2002 (herein after referred to as the “child”).

The child live with the father.

The child continue to attend [omitted School] for his primary school education.

The father be substituted for the mother as the enrolling parent at [omitted School].

The father arrange with the Principal of [omitted School] for the child to be accepted back into the Out of Hours School Care program offered by the school.

The father take all steps necessary to provide the Principal of [omitted School] with all authorities necessary to enable and permit the child to:

(a) Engage with the school counsellor;

(b) Engage in internet learning; and

(c) Engage in any other appropriate learning activity as recommended by the school included but not limited to the Rainbow Reading Program.

The paternal grandmother be at liberty to attend and collect and deliver the child to and from school at the usual time.

The father take all necessary steps to liaise with the Principal of [omitted School] and the appropriate officer at Centacare to obtain information as to the identity of an appropriate child psychologist for the child to attend upon.

The father take all necessary steps to obtain a mental health plan referral for the child so that he can commence counselling with such appropriately qualified expert as identified to the father either by the Principal of [omitted School] or Centacare pursuant to order 8 herein.

10.

The father do all things necessary to obtain a referral from his general medical practitioner in order to receive psychological and/or other counselling in the terms recommended by the family report writer herein, Mr P and provide Mr P with an authority directed to that person to enable Mr P to consult with him/her prior to the preparation of the family report update ordered pursuant to order 19 hereof.

11.

The father be restrained and an injunction issued restraining him from:

(a) Attending at any sports training or matches involving the child at any time in which the child is otherwise in the care of the mother;

(b) Discussing these proceedings within the hearing or the presence of the child; and.

12.

The mother spend time with the child as follows:

(a) During school terms commencing the first weekend of each new term:

(i) From 5.00 pm Friday to 5.00 pm Sunday (or 5.00 pm Monday in the event that Monday is a public holiday) on each alternate weekend; and

(ii) At any other times as may be agreed between the father and the mother in writing.

(b) During the short school holiday periods of 2011:

(i) From 5.00 pm on 15 April 2011 to 5.00 pm on 23 April 2011;

(ii) From 5.00 pm on 8 July 2011 to 5.00 pm on 16 July 2011; and

(iii) From 5.00 pm on 30 September 2011 to 5.00 pm on 8 October 2011;

13.

The mother be restrained and an injunction issued restraining her from:

(a) Attending upon the premises of [omitted School] save and except when invited by the school authorities to do so;

(b) Photographing, surveilling or recording the child, the father or the maternal grandmother on the premises of [omitted School] or its immediate surroundings or at the child’s home;

(d) Attending at any match or training of any sport involving the child during the time that the child is in the care of the father;

(e) Discussing these proceedings within the hearing or the presence of the child;

(f) Denigrating, harassing or abusing the father, the paternal grandmother or any of the staff of [omitted School]; and

(g) Attending with the child upon any medical practitioner other than those named by the father in respect of the child’s epilepsy or general health other than in circumstances of medical emergency.

14.

The mother provide the child with any medications given to her by the father in the discharge of his responsibilities to attend to issues pertaining to the child’s health.

15.

The mother do all things necessary to obtain a referral from her general medical practitioner in order to receive psychological and/or other counselling in the terms recommended by the family report writer herein, Mr P and provide Mr P with an authority directed to that person to enable Mr P to consult with him/her prior to the preparation of the family report update ordered pursuant to order 19 hereof.

16.

All handovers occur, where ever possible, at the [omitted] Children's Contact Centre and if not possible inside the foyer at the [omitted] Police Station.

17.

In the event that the parties have not enrolled in the [omitted] Children's Contact Centre handover programme they forthwith take all necessary steps and attend all necessary appointments to ensure registration and entry into such programme.

18.

The child be at liberty to email and telephone his mother and father when in the care of the other parent pursuant to these orders and that parent facilitate the child to communicate with the other parent by telephone or email.

19.

The family report herein be updated and the parties do all things as necessary and attend at all such appointments as are made for them to facilitate such report being prepared by Mr P in June of 2011 with the report to include interviews with Ms A, the principal of [omitted School] and with the child’s 2011 classroom teacher at the school.

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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