REDFORD & REDFORD - [2018] FamCA 33

FAMILY COURT OF AUSTRALIA

REDFORD & REDFORD

[2018] FamCA 33

FAMILY LAW – CHILDREN – Parental responsibility – Where the presumption of equal shared parental responsibility is rebutted through the parties’ mutual disaffection – Where the father disengaged from the proceedings – Ordered the mother shall have sole parental responsibility for the children and they live with her

FAMILY LAW – CHILDREN – With whom a child spends time – Where the father maintained the children were at risk of harm in the mother’s care without bothering to participate in the trial – Concluded that no orders are made regulating the circumstances under which the children may spend time with the father – Ordered the father may maintain written communication with the children

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAC

Allesch v Maunz (2000) 203 CLR 172
Betros & Betros [2017] FamCAFC 90
Redford & Redford [2017] FamCA 114
Taylor v Taylor (1979) 143 CLR 1

APPLICANT:

Ms Redford

RESPONDENT:

Mr Redford

INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitor

FILE NUMBER:

NCC

2484

2013

DATE DELIVERED:

29 January 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

11 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mooney

SOLICITOR FOR THE APPLICANT:

Ramsland Laidler Solicitor

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ticehurst

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitor

Orders

All former orders relating to the following children (“the children”) are discharged:
(a)       B, born … 2006;
(b)       C, born … 2010; and
(c)       D, born … 2011.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:
(a)The mother’s residence; and
(b)Any school attended by any of the children.
The parties shall take all reasonable steps to ensure the children are able to communicate with the father in the following manner:
(a)By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day, and
(b)By the mother promptly sending to the father:
(i)Written acknowledgement of receipt of the father’s written communication, and
(ii)Any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the father.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current postal address.
Each party is restrained from permitting the children to refer to any person other than the parties by use of the terms “Mum” and “Dad” respectively.
Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
The mother shall authorise and request the principals of any school…

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: [2018] FamCA 33
Decision Date: 29 January 2018

CaseChat Overview and Summary

In the matter of Redford & Redford, Austin J of the Family Court of Australia considered a dispute concerning parental responsibility and the living arrangements for three children. The proceedings involved the mother and the father, who had disengaged from the trial despite alleging the children were at risk in the mother's care.

The court was required to determine whether the presumption of equal shared parental responsibility was rebutted, and if so, what orders should be made regarding the children's residence and their time with the father. Additionally, the court had to consider the father's allegations of risk to the children and the appropriate communication arrangements between the father and the children.

Austin J found that the presumption of equal shared parental responsibility was rebutted due to the parties' mutual disaffection and the father's disengagement from the proceedings. The court concluded that the father's unsubstantiated allegations of risk did not warrant any orders regulating his time with the children. Consequently, the court ordered that the mother shall have sole parental responsibility for the children and that the children shall live with her. The father was restrained from approaching the mother's residence or the children's schools, but was permitted to maintain written communication with the children, with specific provisions for the exchange of correspondence and photographs. The court also made orders regarding the parties' addresses, the use of parental terms by the children, and the prevention of denigration of either parent in the children's presence.

Orders

Orders of the court

All former orders relating to the following children (“the children”) are discharged:

(a) B, born … 2006;

(b) C, born … 2010; and

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:

(a) The mother’s residence; and

(b) Any school attended by any of the children.

The parties shall take all reasonable steps to ensure the children are able to communicate with the father in the following manner:

(a) By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day, and

(b) By the mother promptly sending to the father:

(i) Written acknowledgement of receipt of the father’s written communication, and

(ii) Any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the father.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current postal address.

Each party is restrained from permitting the children to refer to any person other than the parties by use of the terms “Mum” and “Dad” respectively.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

The mother shall authorise and request the principals of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

10.

Costs are reserved for 28 days.

11.

Any and all other outstanding applications are 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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