Pitman & Bond - [2014] FCCA 2126

FEDERAL CIRCUIT COURT OF AUSTRALIA

PITMAN & BOND

[2014] FCCA 2126

Catchwords:
FAMILY LAW – Parenting – the father has history of family violence in several relationships – children of this relationship aged 8 and 10 live in Darwin with the mother – father lives in South Australia – whether or not father should spend any time with children and if so on what basis.

Legislation:

Family Law Act 1975

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Pitman & Bond (No.2) [2008] FMCAfam 1316
T v S (2001) 28 Fam LR 342
M v M (1998) FLC 91-979
Murphy v Murphy [2007] FamCA 795
Tindall v Saldo [2012] FamCA 1156
Watkins v Dermott [2012] FMCAfam 1301
Dylan v Dylan [2008] FamCAFC 109
Moose v Moose (2008) FLC 93-375
Millburn v Wallow [2013] FamCAFC 191
Slater v Light (2013) 48 Fam LR 573

Applicant:

MS PITMAN

Respondent:

MR BOND

File Number:

DNC 656 of 2007

Judgment of:

Judge Harland

Hearing dates:

7, 8, 9 & 18 July 2014

Date of Last Submission:

18 July 2014

Delivered at:

Darwin

Delivered on:

12 September 2014

REPRESENTATION

Counsel for the Applicant:

Ms Holtham

Solicitors for the Applicant:

Story & Associates

Counsel for the Respondent:

Ms Morgan

Solicitors for the Respondent:

Hunt & Hunt Lawyers

Counsel for the Independent Children's Lawyer:

Ms Elliott

Solicitors for the Independent Children's Lawyer:

Marris & Co Solicitors & Barristers

ORDERS

That all previous parenting orders be discharged.
That the children X born (omitted) 2003 and Y born (omitted) 2006 live with the mother.
That the mother have sole parental responsibility of the children.
That the father be restrained from spending any time with or communicating with the children except as allowed for in order 5.
That the father be permitted to send to the mother, at a postal address nominated by her, such letters, gifts and photographs as are age appropriate for the children and subject to the mother being satisfied that they are age appropriate and do not denigrate her, she shall give them to the children.
That the mother shall assist the children to write to the father should they express a wish to do so.
That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child’s school reports to the father at the father’s expense.
That each party be restrained from denigrating the other to the children or in the presence of the children or permitting anyone else to do so.
That each party provide to the other their postal addresses and advise of any change within 14 days of the change occurring.

IT IS NOTED that publication of this judgment under the pseudonym Pitman & Bond is approved pursuant to s.121(9)(g) of the

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 Pitman & Bond

Details

AGLC: Pitman & Bond [2014] FCCA 2126
Case: [2014] FCCA 2126
Decision Date: 12 September 2014

CaseChat Overview and Summary

In the matter of *Pitman & Bond*, Judge Harland of the Federal Circuit and Family Court of Australia considered parenting orders concerning two children, X and Y. The dispute involved the living arrangements and parental responsibility for the children, as well as the extent of the father's contact and communication with them.

The court was required to determine the best interests of the children in relation to their residence, parental responsibility, and the nature and extent of any time or communication the father should have with them. Additionally, the court had to consider provisions for the exchange of information regarding the children's schooling and the conduct of each parent in relation to the other and the children.

Judge Harland ordered that all previous parenting orders be discharged. The children were ordered to live with the mother, who was granted sole parental responsibility. The father was restrained from spending any time with or communicating with the children, with limited exceptions. These exceptions permitted the father to send age-appropriate letters, gifts, and photographs to the children via the mother, provided she was satisfied they were appropriate and did not denigrate her. The mother was also ordered to facilitate the children writing to the father if they wished. The court further ordered that the mother ensure the children's school reports were forwarded directly to the father at his expense, and that both parents refrain from denigrating each other to or in the presence of the children. Finally, both parties were ordered to provide and update their postal addresses.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the children X born (omitted) 2003 and Y born (omitted) 2006 live with the mother.

That the mother have sole parental responsibility of the children.

That the father be restrained from spending any time with or communicating with the children except as allowed for in order 5.

That the father be permitted to send to the mother, at a postal address nominated by her, such letters, gifts and photographs as are age appropriate for the children and subject to the mother being satisfied that they are age appropriate and do not denigrate her, she shall give them to the children.

That the mother shall assist the children to write to the father should they express a wish to do so.

That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child’s school reports to the father at the father’s expense.

That each party be restrained from denigrating the other to the children or in the presence of the children or permitting anyone else to do so.

That each party provide to the other their postal addresses and advise of any change within 14 days of the change occurring.

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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