Redman and Bartsch - [2013] FMCAfam 309

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REDMAN & BARTSCH

[2013] FMCAfam 309

FAMILY LAW – Parenting – children 11 and 9 years – father's capacity to interact with children/consult with mother as a result of having Asperger’s syndrome – time with father significantly limited – sole parental responsibility order to mother.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Applicant:

MS REDMAN

Respondent:

MR BARTSCH

File Number:

SYC 1818 of 2011

Judgment of:

Sexton FM

Hearing dates:

21 and 22 March 2013

Date of Last Submission:

22 March 2013

Delivered at:

Sydney

Delivered on:

5 April 2013

REPRESENTATION

Counsel for the Applicant:

Ms Christie

Solicitors for the Applicant:

Dimocks Family Lawyers

Counsel for the Respondent:

Mr Peterson

Solicitors for the Respondent:

Ryall Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Falloon

Solicitors for the Independent Children’s Lawyer:

Peter Baker Solicitors

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The children of the parties, X born (omitted) 2002 and Y born (omitted) 2004, live with the Mother.
The children spend time with the Father:
(a)each alternate Saturday from 1 p.m. until 5 p.m. unless the children are engaged in an activity outside the home when time can be extended by agreement between the parties;
(b)on Father’s Day (in Australia) each year from 1 p.m. until 5 pm, when time on the Saturday of that weekend will be suspended if the Father’s Day weekend is a contact weekend; and
(c)on the Saturday closest to each child’s birthday from 1 p.m. until 5 p.m. (if not a contact Saturday).
(d)at any other time by agreement between the parties.
Unless otherwise agreed between the parties, changeover occur in the lobby of the Mother’s residence.
The Father advise the Mother by text message if he will be more than 10 minutes late returning the children.
The children have telephone communication with the Father each Wednesday between 7.30p.m. and 8.30p.m. when the Father will call the children’s mobile phone, and the Mother will ensure the children’s mobile phone is charged and switched on.
The Mother have sole parental responsibility for decisions relating to major long term issues for the children, including but not limited to decisions about their education, religion, medical treatment and health, applications for passports and overseas travel.
The Mother notify the Father by email, as soon as practicable, of any major decision she has made in respect to the children’s health, education or religion.
The Mother authorise the children’s schools to provide school reports to the Father at his request, and any other information sought by the Father in relation to the progress of either child.
Each party be responsible for the day to day care, welfare and development of the children during periods the children are in his/her care.
Each party keep the other informed of his/her residential address, landline and mobile telephone contact details and ensure the other has at least 14 days advance notice of any change in address, and 24 hours advance notice of…

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 Redman and Bartsch

Details

AGLC: Redman and Bartsch [2013] FMCAfam 309
Case: [2013] FMCAfam 309
Decision Date

CaseChat Overview and Summary

This case involved a dispute between the parents of two children, X and Y, regarding their residence and contact arrangements. The parties had been unable to agree on how much time the children should spend with their father and whether parental responsibility should be shared. The case was heard by Sexton FM in the Federal Magistrates Court of Australia. The court had to decide on the best interests of the children, considering various legal principles and factors.

The court found that the father's capacity to interact with the children was significantly limited due to his Asperger's Syndrome. The expert evidence indicated that the father lacked insight, parental judgment, and empathy with the children. The court agreed with the expert's assessment and found that the current arrangements were harmful to the children.

The court considered the primary considerations, including the benefit of a meaningful relationship with both parents and the need to protect the child from harm. The court found that the children's relationship with the father was not meaningful due to his lack of capacity to engage with them appropriately. The court also found that the children were emotionally neglected by the father and were at risk of physical harm.

The court then considered the additional considerations, such as the children's views, the nature of their relationships with their parents, and the capacity of each parent to provide for their needs. The court found that the children had a close relationship with their mother and were not close to their father. The court also found that the mother was a caring and capable parent, while the father had shown a poor attitude towards the responsibilities of parenthood.

Based on these findings, the court ordered that the children would live with their mother and have sole parental responsibility for major long-term decisions. The court also ordered that the children would spend time with their father for a limited period of 3-4 hours on alternate weekends, with the possibility of extending the time if the mother agreed to an outing proposed by the father. The court encouraged the father to seek professional advice to develop a more joyful and exuberant relationship with the children.

In conclusion, the court made orders that were in the best interests of the children, considering their emotional and physical wellbeing, and their need for a meaningful relationship with both parents. The court also took into account the parents' capacity to provide for the children's needs and the importance of protecting the children from harm.

Orders