Peter and Elspeth - [2009] FamCA 551

FAMILY COURT OF AUSTRALIA

PETER & ELSPETH

[2009] FamCA 551

FAMILY LAW – CHILDREN – With whom a child spends time – time with non-resident parent – parental responsibility – application to discharge orders – absence of meaningful relationship with father – no prospect of establishing meaningful relationship – children and mother Exclusive Brethren – mother’s health – best interests of children

Family Law Act 1975 (Cth)

McCall & Clark [2009] FamCAFC 92
Malak & Mairie [2009] FamCA 268

APPLICANT:

Peter

RESPONDENT:

Elspeth

INDEPENDENT CHILDREN’S LAWYER:

P.L. Corby & Co

FILE NUMBER:

HBC

748

2007

DATE DELIVERED:

25 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Launceston

JUDGMENT OF:

Brown J

HEARING DATE:

27, 28, 29 and 30 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Ackman QC
with Ms MacMillan

SOLICITOR FOR THE RESPONDENT:

Murray & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Waterhouse

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

P.L. Corby & Co

Orders

That all extant parenting orders and injunctions which relate to the children of the marriage J born … January 1994 and C born … December 1998 (“the children”) be discharged.
That the mother have sole parental responsibility for the children.
That the children live with the mother.
That the mother be restrained:
(a)from discussing the father’s leaving of the Exclusive Brethren faith or the father’s lifestyle; and
(b) denigrating the father
in the presence or hearing of the children and from allowing any other person to do so in their presence or hearing.
That the mother forthwith authorise the principal of O School to provide to the father, at his expense (if any) a copy of:
(a)       each school report for J and C;
(b)       an order form for each school photo of J and C; and
(c)       newsletters or other publications routinely provided to parents
and the father be at liberty to discuss the children’s educational progress with the principal provided that:
(i)if the father wishes to attend the school to do so, he makes an appointment prior to his attendance; and
(ii)such appointment is made for a time at which J, C, the mother or a sibling of J and C, are not likely to be on the school premises.
That the Independent Children’s Lawyer serve a sealed copy of these orders on the principal of O School within 7 days of receipt of such sealed copy from the Registry.
That the mother advise the father in writing of any serious illness or injury experienced by J or C, such notice to be given as soon as practicable after such illness is diagnosed or injury suffered.
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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these…

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 Peter and Elspeth

Details

AGLC: Peter and Elspeth [2009] FamCA 551
Case: [2009] FamCA 551
Decision Date: 25 June 2009

CaseChat Overview and Summary

In the matter of Peter and Elspeth, Brown J of the Family Court of Australia considered a dispute concerning the parenting arrangements for the parties' two children, J and C. The proceedings involved applications and responses filed by both the father and the mother, as well as contravention applications.

The court was required to determine the future parenting orders for J and C, including issues of parental responsibility, living arrangements, and communication between the father and the children. Additionally, the court had to consider orders restraining the mother's conduct in the presence of the children and provisions for the father's access to school-related information. The court also had to address the disposition of the father's contravention applications.

Brown J ordered the discharge of all extant parenting orders and injunctions relating to the children. The mother was granted sole parental responsibility, and the children were ordered to live with her. The mother was restrained from discussing the father's religious beliefs or lifestyle, or denigrating the father, in the presence or hearing of the children, and from permitting others to do so. The mother was also ordered to provide the father with copies of school reports and photos, and to authorise him to discuss educational progress with the school principal, subject to specific conditions regarding appointments and the presence of the children or mother. The court also mandated that the mother advise the father in writing of any serious illness or injury to the children. The father's application filed on 18 June 2007 and the mother's response filed on 13 July 2007 were otherwise dismissed. The contravention applications filed by the father were listed for further submissions on their disposition. The court noted that no orders provided for the father to spend time or communicate with the children.

Orders

Orders of the court

That all extant parenting orders and injunctions which relate to the children of the marriage J born … January 1994 and C born … December 1998 (“the children”) be discharged.

That the mother have sole parental responsibility for the children.

That the children live with the mother.

That the mother be restrained:

(a) from discussing the father’s leaving of the Exclusive Brethren faith or the father’s lifestyle; and

(b) denigrating the father

in the presence or hearing of the children and from allowing any other person to do so in their presence or hearing.

That the mother forthwith authorise the principal of O School to provide to the father, at his expense (if any) a copy of:

(a) each school report for J and C;

(b) an order form for each school photo of J and C; and

and the father be at liberty to discuss the children’s educational progress with the principal provided that:

(i) if the father wishes to attend the school to do so, he makes an appointment prior to his attendance; and

(ii) such appointment is made for a time at which J, C, the mother or a sibling of J and C, are not likely to be on the school premises.

That the Independent Children’s Lawyer serve a sealed copy of these orders on the principal of O School within 7 days of receipt of such sealed copy from the Registry.

That the mother advise the father in writing of any serious illness or injury experienced by J or C, such notice to be given as soon as practicable after such illness is diagnosed or injury suffered.

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 the 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.

That the application filed by the father on 18 June 2007 and the response filed by the mother on 13 July 2007 be otherwise dismissed.

10.

That the contravention applications filed by the father on 31 May 2007 and 15 June 2007 be listed at 10.00am on 20 July 2009 for the making of submissions directed to their disposition and:

(a) the Independent Children’s Lawyer have leave to make a submission, if he considers it in the best interests of the children to do so; and

(b) the parties may appear by telephone.

IT IS CERTIFIED

11.

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel and solicitors appearing as counsel.

AND THE COURT NOTES

That no orders provide for the father to spend time or communicate with the children.

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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