Preston & Baker and Anor - [2012] FMCAfam 308

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRESTON & BAKER and ANOR

[2012] FMCAfam 308

FAMILY LAW – Children – Father seeking change of live with arrangements for two young children aged nearly 2 and 3 ½ – where 3 ½ year old is not the biological child of the father – where the father is the only father figure the child has known – where father alleges that the mother is harming the children psychologically because of her behaviour towards the father – where father is alleging that the mother has exposed children to family violence – where mother has unaddressed mental health issues – where mother wishes to relocate the children to Perth – where mother unlikely to support or promote a relationship between the father and the children – interim orders made for children to live with the father and spend supervised time with the mother – where presumption of equal shared parental responsibility did not apply because of family violence – where order made for father to have sole parental responsibility.

Family Law Act 1975, Pt VII, ss.4, 60B, 60CC, 60CG, 61DA, 65C, 65DAA

Johnson & Johnson (2000) 201 CLR 488
Goode & Goode [2006] FamCA 1346
Morgan & Miles (2007) FamCA 1230
MRR & GR (2010) HCA 4

Applicant:

MR PRESTON

First Respondent:

MS BAKER

Second Respondent:

MR QUIGLEY

File Number:

DNC 169 of 2011

Judgment of:

L.Turner FM

Hearing dates:

19 & 20 March 2012

Date of Last Submission:

20 March 2012

Delivered at:

Darwin

Delivered on:

4 April 2012

REPRESENTATION

Counsel for the Father:

Ms Farmer

Solicitors for the Father:

Withnalls

The First Respondent:

In Person

The Second Respondent:

No Appearance

ORDERS UNTIL FURTHER ORDER

That all previous children’s orders are hereby discharged.
That a copy of these orders be provided by the Darwin Registry Manager of the Family Court of Australia to the child care centre immediately.
That the mother is restrained from removing the children from the child care centre.
That the father attend today at the child care centre to collect the children.
That the children X born (omitted) 2008 and Y born (omitted) 2010 live with the father.
That the father have sole parental responsibility for the children.
That the mother have supervised time with the children for a two hour period each weekend, at a time suitable to the mother and the contact centre, such supervision to occur at CatholicCare NT.
That the parties communicate by way of communication book with:-
(a)The communication book to be purchased and provided by the father at the first supervised visit and to be provided by the father at every supervised visit thereafter;
(b)The mother to ensure the return of the communication book at the conclusion of each supervised visit;
(c)The communication book to contain a short summary written by the father of the children’s activities during the week, and notification of any issues regarding the children including health, diet, milestones etc;
(d)That any communication by either party in the book is restricted…

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.

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Details

Case: [2012] FMCAfam 308
Decision Date: 4 April 2012

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Mr. Preston (the father) initiated proceedings against Ms. Baker (the mother) and Mr. Quigley (the biological father of one of the children) to determine issues concerning the parenting arrangements of two young children, X and Y. The primary issues were whether the children should live with the father or the mother, and if the latter, whether the mother could relocate the children to Perth. The father sought sole parental responsibility, while the mother sought permission to move to Perth with the children, allowing the father visitation during holidays.

The court found that the children were at significant risk of psychological harm and exposure to family violence if they remained with the mother. The mother's relentless verbal and physical abuse of the father in front of the children was deemed harmful and damaging, and there was a lack of insight into how her actions affected the children. Additionally, the mother had unaddressed mental health issues that impacted her capacity to care for the children. The father, on the other hand, was found to be a loving and involved father figure, particularly to X, who considered him her father.

Given the findings, the court ordered that the children live with the father and have supervised time with the mother. The supervision was to occur at a designated location to ensure the children's safety and prevent further exposure to the mother's abuse. The court also restrained the mother from contacting the father or the children outside of the supervised visits. Further, the father was granted sole parental responsibility for the children.

The court dismissed the mother's claims regarding favoritism, financial support, and potential mental illnesses in the children. The court concluded that these issues did not impact the best interests of the children, who were to live with the father to protect them from the psychological harm and family violence they faced in the mother's care.

Orders