Prantage & Prantage - [2011] FamCA 481

FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE

[2011] FamCA 481

FAMILY LAW – INTERIM ORDERS - Urgent need to change residence

Family Law Act 1975 (Cth)

APPLICANT:

Ms Prantage

RESPONDENT:

Mr Prantage

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

11263

2008

DATE DELIVERED:

22 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood

SOLICITOR FOR THE APPLICANT:

Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Benjamin

SOLICITOR FOR THE RESPONDENT:

Gadens Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr T J Mulvany

Orders

That paragraphs 4 to 9 inclusive of the orders made 24 December 2010 are discharged.

UNTIL FURTHER ORDER:

That the wife have responsibility for making major long term decisions concerning the health and education of the children M born … December 1998 and D born … June 2002 (“the children”) provided that at all times she notify the husband of such decisions in writing care of his lawyers.
That commencing forthwith the children live with the wife.
Save as provided in paragraphs 8 and 7(c) of these orders, the children spend no time nor communicate with the husband (and without the husband admitting the necessity for such order).
The husband by himself, his servants and agents (such expression to include the husband’s parents) be and are hereby restrained from communicating or attempting to communicate with either or both of the children in any manner including but not limited to text messages, email, Facebook or any other form of social communication.
That the wife be at liberty to remove the children from their respective schools forthwith until the commencement of Term 3 2011.
That for the purposes of resumption of the attendances of the parents and the children upon Dr NZ pursuant to paragraph 3 of the orders made 24 December 2010:
(a)    the mother, father and the children shall attend upon Dr NZ as and when requested by Dr NZ;
(b)    the cost of appointments with Dr NZ be borne equally between the husband and the wife but be subject to review in any future proceedings; and
(c)    unless otherwise directed by Dr NZ, there be no meeting between the father and either or both children prior to 30 September 2011 and thereafter, as directed by Dr NZ.
That the father be at liberty to forward cards and presents through Dr NZ and the mother be at liberty to deliver cards and messages from the children to the father through Dr NZ with Dr NZ being at liberty to withhold all or any such cards and messages.
The parties have liberty to apply on formal application.
That the Independent Children’s Lawyer be at liberty to provide a copy of this order to any other person or persons he considers ought receive a copy of same.
That as soon as practicable this day, a family consultant appointed by the Director of Child Dispute Services attend upon the children to explain to them 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 Prantage & Prantage

Details

AGLC: Prantage & Prantage [2011] FamCA 481
Case: [2011] FamCA 481
Decision Date: 22 June 2011

CaseChat Overview and Summary

In *Prantage & Prantage*, heard before Cronin J, the dispute concerned interim orders relating to the children of the marriage, M and D. The court was required to determine the terms of these orders, particularly concerning the children's living arrangements, communication with the husband, and the involvement of professionals.

The court's reasoning focused on establishing a framework for the children's welfare and safety pending further orders. Key legal issues included determining which parent would have responsibility for major long-term decisions regarding the children's health and education, and establishing the children's primary residence. The court also addressed the complex issue of the children's time with, and communication with, the husband, as well as the husband's communication with the children.

Cronin J ordered that the wife have responsibility for major long-term decisions concerning the children's health and education, provided she notify the husband in writing. The children were ordered to live with the wife, and save for specific exceptions, were to spend no time nor communicate with the husband. The husband was restrained from communicating with the children through various electronic means. The wife was permitted to remove the children from their schools until the commencement of Term 3 2011. The court also made detailed provisions for the children to attend upon a professional, Dr NZ, with equal cost sharing and specific directions regarding contact between the father and children. Further orders included provisions for the exchange of cards and presents through Dr NZ, liberty for the Independent Children's Lawyer to distribute the order, and a request for a family consultant to explain the orders to the children. The court also ordered that the father ensure any children who contacted him or attended his or his parents' home were immediately returned to the mother. Finally, both parties were restrained from removing the children from Australia, with a request for their names to be placed on the Airport Watch List.

Orders

Orders of the court

That paragraphs 4 to 9 inclusive of the orders made 24 December 2010 are discharged.

UNTIL FURTHER ORDER:

That the wife have responsibility for making major long term decisions concerning the health and education of the children M born … December 1998 and D born … June 2002 (“the children”) provided that at all times she notify the husband of such decisions in writing care of his lawyers.

That commencing forthwith the children live with the wife.

Save as provided in paragraphs 8 and 7(c) of these orders, the children spend no time nor communicate with the husband (and without the husband admitting the necessity for such order).

The husband by himself, his servants and agents (such expression to include the husband’s parents) be and are hereby restrained from communicating or attempting to communicate with either or both of the children in any manner including but not limited to text messages, email, Facebook or any other form of social communication.

That the wife be at liberty to remove the children from their respective schools forthwith until the commencement of Term 3 2011.

That for the purposes of resumption of the attendances of the parents and the children upon Dr NZ pursuant to paragraph 3 of the orders made 24 December 2010:

(a) the mother, father and the children shall attend upon Dr NZ as and when requested by Dr NZ;

(b) the cost of appointments with Dr NZ be borne equally between the husband and the wife but be subject to review in any future proceedings; and

(c) unless otherwise directed by Dr NZ, there be no meeting between the father and either or both children prior to 30 September 2011 and thereafter, as directed by Dr NZ.

That the father be at liberty to forward cards and presents through Dr NZ and the mother be at liberty to deliver cards and messages from the children to the father through Dr NZ with Dr NZ being at liberty to withhold all or any such cards and messages.

The parties have liberty to apply on formal application.

10.

That the Independent Children’s Lawyer be at liberty to provide a copy of this order to any other person or persons he considers ought receive a copy of same.

11.

That as soon as practicable this day, a family consultant appointed by the Director of Child Dispute Services attend upon the children to explain to them the terms and conditions of these orders AND IT IS REQUESTED that the principals of the respective schools of the children do all things necessary to assist in enabling the family consultant the opportunity to explain these orders to the children.

12.

That in the event that either or both of the children contact the father and/or attend his home and/or attend the home of the paternal grandparents, the father do all such things required to ensure that the children and/or child are immediately returned to the home of the mother.

13.

That until further order each party Ms Prantage born … 1970 and Mr Prantage born … 1965 their servants and/or agents be and are each hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the said children M born … December 1998 (female) and D born … June 2002 (male) from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said children’s names on the Watch List until the Court orders its removal.

14.

That all interim applications be otherwise dismissed.

15.

That 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 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.

IT IS CERTIFIED:

16.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

AND THE COURT NOTES

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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