RANKIN & RANKIN - [2019] FamCA 555

FAMILY COURT OF AUSTRALIA

RANKIN & RANKIN

[2019] FamCA 555

FAMILY LAW – CHILDREN – Longstanding entrenched conflict between the parties – allegations the wife has alienated the children from the husband – allegations the father poses an unacceptable risk to the children – father initially applied for a change of residence and subsequently amended his application to spend time – ‘hybrid’ alienation.

Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61DA, 65DA(2)

McCall & Clark [2009] FamCAFC 92
Bell & Nahos [2016] FamCAFC 244
Jabour & Jabour [2019] FamCAFC 78
In the Marriage of Rice and Asplund (1978) 6 Fam LR 570

APPLICANT:

Mr Rankin

RESPONDENT:

Ms Rankin

INDEPENDENT CHILDREN’S LAWYER:

Danielle Webb Lawyer

FILE NUMBER:

DGC

2859

2013

DATE DELIVERED:

20 August 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Williams J

HEARING DATE:

11-14 June 2019; 18-21 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Morfuni of Queens Counsel with Ms Matson of Counsel

SOLICITOR FOR THE APPLICANT:

L Y Tonge & Co Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Dellidis of Counsel

SOLICITOR FOR THE RESPONDENT:

Tisher Liner FC Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Tesoriero of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Danielle Webb Lawyer

Orders

All previous orders regarding the children D born … 2003, E born … 2004 and F born … 2009 be and are hereby discharged.
The wife have sole parental responsibility for the children, save for any change to their names in respect of which the husband and wife have equal shared responsibility.
The children live with the wife.
The children E and F spend time and communicate with the husband:-
(a)       on the first and third Sunday of each month (or if it is a Jewish religious holiday, the following Sunday of the month instead) for a period of 4 hours from 3pm to 7pm or such other block of four hours as may be agreed;
(b)       by telephone each Tuesday and on the children’s birthdays with the husband to initiate the call to the wife’s mobile between 7pm and 8pm;
(c)        as may otherwise be agreed in writing.
Prior to the time referred to in order 4 commencing, the husband and the children attend one session with Dr Y in accordance with order 11 hereof.
From 16 June 2020, E’s time with the husband be in accordance with his wishes.
Changeover take place at TT Business, RRR Street Suburb TTT, unless otherwise agreed between the wife and husband in writing.
The husband be at liberty to send gifts, cards and letters to the children and for this purpose the wife shall keep the husband advised of her postal address.
The wife do all acts and things necessary to authorise the husband to receive from the children’s school all information relating to their education including but not limited to reports and other information ordinarily provided to parents.
The wife shall as soon as practicable advise the husband of any serious medical issue relating to…

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 RANKIN & RANKIN

Details

AGLC: RANKIN & RANKIN [2019] FamCA 555
Case: [2019] FamCA 555
Decision Date: 20 August 2019

CaseChat Overview and Summary

This matter concerned final parenting orders sought by the wife against the husband regarding their three children. The court was required to determine the future parental responsibility, living arrangements, and time spent by the children with each parent, as well as address issues of communication, counselling, and parental conduct.

The court considered the best interests of the children in making its determination. It applied principles relating to parental responsibility, the presumption of equal shared parental responsibility, and the specific circumstances of the family. The court also addressed the need for counselling to facilitate positive co-parenting and prevent denigration of either parent.

Ultimately, the court ordered that the wife have sole parental responsibility for the children, with the exception of name changes where they shared equal responsibility. The children were ordered to live with the wife, and specific arrangements were made for the children to spend time and communicate with the husband, including supervised counselling sessions. Injunctions were granted to prevent denigration of either parent and to restrict the discussion of court proceedings with the children. The court also made orders regarding passports and international travel.

Orders

Orders of the court

All previous orders regarding the children D born … 2003, E born … 2004 and F born … 2009 be and are hereby discharged.

The wife have sole parental responsibility for the children, save for any change to their names in respect of which the husband and wife have equal shared responsibility.

The children live with the wife.

The children E and F spend time and communicate with the husband:-

(a) on the first and third Sunday of each month (or if it is a Jewish religious holiday, the following Sunday of the month instead) for a period of 4 hours from 3pm to 7pm or such other block of four hours as may be agreed;

(b) by telephone each Tuesday and on the children’s birthdays with the husband to initiate the call to the wife’s mobile between 7pm and 8pm;

Prior to the time referred to in order 4 commencing, the husband and the children attend one session with Dr Y in accordance with order 11 hereof.

From 16 June 2020, E’s time with the husband be in accordance with his wishes.

Changeover take place at TT Business, RRR Street Suburb TTT, unless otherwise agreed between the wife and husband in writing.

The husband be at liberty to send gifts, cards and letters to the children and for this purpose the wife shall keep the husband advised of her postal address.

The wife do all acts and things necessary to authorise the husband to receive from the children’s school all information relating to their education including but not limited to reports and other information ordinarily provided to parents.

10.

The wife shall as soon as practicable advise the husband of any serious medical issue relating to the children.

11.

The husband and wife facilitate the husband and the children E and F participating in non-reportable counselling with Dr Y or another psychologist from Dr Y’s practice (“the Psychologist”), once per month (or such other frequency as recommended by the Psychologist) for a period of 12 months for F, and for E, until 16 June 2020, and such counselling be at the husband’s expense.

12.

The husband and wife, their servants and agents, be restrained by injunction from:-

(a) denigrating the other parent in the hearing of the children, or allowing any other person to do so;

(b) discussing these court proceedings or the allegations in these proceedings in the hearing of the children, save that the parents may inform the children of the effect of orders 3 to 7 herein;

(c) allowing the children to read any court documents filed in these proceedings or relating to any child support dispute;

(d) recording or encouraging or allowing the children to record the other parent during times they are spending or communicating with them.

13.

Within 7 days of any written request by the wife, the husband do all things and sign all documents necessary to facilitate the children being issued an Australian passport, or having the children’s passport renewed and in the event the husband does not comply with the wife’s request within 7 days, the wife be permitted to obtain or renew passports for the children without the husband’s consent and:-

(a) an Australian passport issue pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005;

(b) the children be permitted to travel internationally pursuant to section 11(1)(b) of the Australian Passports Act 2005; and

14.

The wife provide to the husband in writing, details of any proposed international travel with the children, or any of them, 28 days prior to such travel.

15.

All extant applications for final parenting orders be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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