Orbel and Maldera - [2014] FCCA 949

FEDERAL CIRCUIT COURT OF AUSTRALIA

ORBEL & MALDERA

[2014] FCCA 949

Catchwords:
FAMILY LAW – Parenting – child aged 12 – application by the father for the child to live with him – child has lived with the maternal grandmother since he was about four years old – maternal grandmother opposes a change of residence.

Legislation:

Family Law Act1975, ss.60B, 60CC

Aldridge & Keaton (2009) FLC 93-421
D & F [2001] FamCA 382
Mazorski & Albright (2007) 37 Fam LR 518
Rice & Asplund (1979) FLC 90-725
Rice & Miller (1993) FLC 92-415

Applicant:

MR ORBEL

Respondent:

MS MALDERA

File Number:

NCC 1281 of 2007

Judgment of:

Judge Terry

Hearing date:

7 & 8 April 2014

Date of Last Submission:

8 April 2014

Delivered at:

Tamworth

Delivered on:

9 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr Boyd

Solicitors for the Applicant:

A W Simpson & Co

Counsel for the Respondent:

Mr Tregilgas

Solicitors for the Respondent:

R J O’Halloran & Co

ORDERS

The orders of 1 June 2009 insofar as they relate to the child [X] born [in] 2002 are discharged.
The father shall have sole parental responsibility for the child subject to Order 3.
The father is restrained and an injunction is granted restraining him from enrolling the child in any school other than [S] Primary School and [T] High School without first having obtained the consent of the maternal grandmother in writing or an order of the court.
The child shall commence living with the father at 5.00pm on Sunday 4 May 2014.
The child shall spend time with the maternal grandmother as follows:
(a)each alternate week in school terms from the conclusion of school on Friday to the commencement of school on Monday or the commencement of school on Tuesday if Monday is a non-school day.
(b)for the first half of all school holiday periods in odd numbered years and second half of all school holidays periods in even numbered years.
(c)at such additional or alternate times as may be agreed between the parties.
Changeovers which do not take place at school shall take place at [omitted] McDonalds.
Neither party will consume alcohol to excess or use illicit drugs when child is in their care.
Both parties are restrained and an injunction is granted restraining them from denigrating the other party or the other parties spouse to or in the presence of the child and neither party will allow a third party to do so.
Each party may obtain from the child’s school copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and may attend events at the children’s school normally attended by parents.
Each party shall advise the other as soon as reasonably practicable in the event that the child while in their care is involved in an accident or medical emergency requiring treatment at hospital or is diagnosed with a serious illness.
Each party shall advise the other of their current mobile telephone…

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 Orbel and Maldera

Details

AGLC: Orbel and Maldera [2014] FCCA 949
Case: [2014] FCCA 949
Decision Date: 9 April 2014

CaseChat Overview and Summary

In the matter of Orbel and Maldera, heard before Judge Terry, the dispute concerned the parenting arrangements for a child, [X], born in 2002. The court was required to determine the future living arrangements and parental responsibility for [X], considering various factors including the child's maturity, the parents' attitudes towards their responsibilities, and the potential for future proceedings.

The court's reasoning focused on the paramount consideration of the child's welfare. Judge Terry noted that [X] was 12 years old and described as an easy-going and adaptable child. The judge expressed concern regarding the father's past inaction in 2009 and his subsequent perception of the maternal grandmother having taken the child, suggesting this indicated a less than ideal attitude towards parental responsibility. While family violence was considered, the court found no sufficient evidence to make such a finding. The court also weighed the preference for orders least likely to lead to further litigation, acknowledging that disputes could arise regardless of the orders made.

Crucially, the court considered the fact of parenthood and the child's history of being let down by his mother. The father's current desire to assume care and responsibility was acknowledged. However, significant concern was raised about the father's antagonistic relationship with the maternal grandmother and other members of the maternal family. The court recognised that [X]'s only connection to his maternal family was through the grandmother, and placing him with the father, who was difficult regarding contact with the grandmother, risked severing this important link.

The court ordered the discharge of previous orders relating to [X]. The father was granted sole parental responsibility, with specific conditions. These included an injunction restraining the father from enrolling [X] in a school other than [S] Primary School or [T] High School without written consent or a court order. [X] was to commence living with the father on 4 May 2014. Detailed provisions were made for the child to spend time with the maternal grandmother, including alternate weeks during school terms and specific arrangements for school holidays. Further orders addressed issues such as changeover locations, prohibitions on alcohol and drug use, restrictions on denigrating the other party, and provisions for information sharing and notification of emergencies.

Orders

Orders of the court

The orders of 1 June 2009 insofar as they relate to the child [X] born [in] 2002 are discharged.

The father shall have sole parental responsibility for the child subject to Order 3.

The father is restrained and an injunction is granted restraining him from enrolling the child in any school other than [S] Primary School and [T] High School without first having obtained the consent of the maternal grandmother in writing or an order of the court.

The child shall commence living with the father at 5.00pm on Sunday 4 May 2014.

The child shall spend time with the maternal grandmother as follows:

(a) each alternate week in school terms from the conclusion of school on Friday to the commencement of school on Monday or the commencement of school on Tuesday if Monday is a non-school day.

(b) for the first half of all school holiday periods in odd numbered years and second half of all school holidays periods in even numbered years.

Changeovers which do not take place at school shall take place at [omitted] McDonalds.

Neither party will consume alcohol to excess or use illicit drugs when child is in their care.

Both parties are restrained and an injunction is granted restraining them from denigrating the other party or the other parties spouse to or in the presence of the child and neither party will allow a third party to do so.

Each party may obtain from the child’s school copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and may attend events at the children’s school normally attended by parents.

10.

Each party shall advise the other as soon as reasonably practicable in the event that the child while in their care is involved in an accident or medical emergency requiring treatment at hospital or is diagnosed with a serious illness.

11.

Each party shall advise the other of their current mobile telephone number and current address and advise the other party of a change of address or contact telephone number within forty-eight (48) hours of a change occurring.

Background

Background to the litigation

I must consider [X]’s maturity, sex, lifestyle and background. The only thing I would say here is that he is 12. He is apparently an easy-going child, an adaptable child and I cannot say anything more under this subheading than that. I have to consider the attitude of each of the child’s parents to the child and the responsibility of parenthood. The comment I made a moment ago about the fact that the father, for reasons of his own, chose not to fight for [X] in 2009 and then from that point on appears to have persuaded himself that somehow the maternal grandmother has taken [X] from him, in my view indicates that his attitude to [X] and the responsibilities of parenthood is not so great. I must consider any family violence involving the child or a member of the child’s family. I do not consider that relevant. I am not going to go down the tortuous path of trying to work out if Mr S, who was assaulted, was in a relationship with the mother at the time of the assault and that therefore there was family violence. I do not have enough evidence to find that. I am satisfied that there is no evidence which would allow me to make a finding that there has been any family violence. There are no family violence orders. I must consider whether it is preferable to make the order least likely to lead to further proceedings. This is always a difficult one because further proceedings can arise for any number of reasons. If I make the orders the father wants and [X] does not settle, or the father does not comply with the spend time with orders, the matter could end up back in Court. If I make the orders the maternal grandmother wants we might have a period of peace and then [X] might actually start to express a view to her and we might end up back in Court anyway. I must consider any other relevant matter and I return here to the fact of parenthood. It is particularly relevant in this case because [X] has been let down by one of his parents, his mother, and he has a father who, whatever he might have done five years ago or seven years ago, or between five and seven years ago, now wants to step up to his responsibilities and assume [X]’s care. The fact of parenthood is relevant, but another relevant matter which I am going to have to take into account is the father’s attitude to the maternal grandmother. I will explain in more detail why that issue worries me so much. [X] has a mother who has let him down, who is not interested in him. The father does not get on with the maternal grandmother and he does not get on with [A] or [B]. He does not get on with any member of the maternal family. [X]’s only link to the maternal family is through the maternal grandmother. If I place [X] with the father and then the father is difficult about [X] spending time with the maternal grandmother, not only will [X] being cut off from her but he will be cut off from any opportunity to have a link with any of his maternal family, and that is why the father’s attitude to the maternal grandmother and his attitude to whether [X] should spend time with her causes me concern.

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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