Regent and Driscoll - [2009] FamCA 14

FAMILY COURT OF AUSTRALIA

REGENT & DRISCOLL

[2009] FamCA 14

FAMILY LAW – CHILDREN – Sole parental responsibility to mother but with consultation of father – Orders for no face to face time – Orders for no oral communication – Spend time with orders – Unacceptable risk of psychological or emotional harm – Child resistant to seeing father – Findings of no sexual abuse

Family Law Act 1975 (Cth)
Family Law Reform Act 1995 (Cth)

Neil v Knott (1994) 68 ALJR 509
Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218
CDJ & VAJ (1998) 197 CLR 172
U v U (2002) 211 CLR 238
M v M (1988) 166 CLR 69
Mazorski v Albright [2007] FamCA 520
Rossi and Rossi [1980] FLC 90-839
AIF v AMS (1999) 199 CLR 160

APPLICANT:

Mr Regent

RESPONDENT:

Ms Driscoll

INDEPENDENT CHILDREN’S LAWYER:

Mr Tester

FILE NUMBER:

BRC

10843

2007

DATE DELIVERED:

9 January 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

02-05 June &
01-02 December 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr P. Smart of Counsel 2-5 June
The Applicant Father in person 1-2 December

COUNSEL FOR THE RESPONDENT:

Mr Burridge

SOLICITOR FOR THE RESPONDENT:

McVittie Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Tester

Orders

Parental Responsibility

IT IS THIS DAY ORDERED in respect of the child … born … August 2002, THAT:

The mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavours to advise the father in writing of the decision intended to be made;
(b) Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:
(a) Keep the other informed of their current residential address;
(b)Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child attends or undertakes as the case may be;
(c)Immediately advise the other in the event that the child sustains any serious injury or suffers any serious illness;
(d)Authorise any person, institution or body referred to in the previous sub-paragraph to provide to the other parent any and all such information in respect of the treatment of the child, or her activities as the case may be, as the other parent might reasonably require;
(e)Have the child’s school/s provide to the other parent a copy of the child’s report cards, together with any other written report issued by the school in respect…

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 Regent and Driscoll

Details

AGLC: Regent and Driscoll [2009] FamCA 14
Case: [2009] FamCA 14
Decision Date: 9 January 2009

CaseChat Overview and Summary

This matter concerned orders made by Murphy J in the Family Court of Australia regarding parental responsibility, living arrangements, and communication for a child born in August 2002. The dispute centred on the extent of the father's involvement in the child's life, particularly concerning major long-term decisions and direct contact.

The court was required to determine the appropriate allocation of parental responsibility, the child's primary residence, the nature and extent of any time the child would spend with the father, and the permissible methods of communication between the father and the child. The court also considered the role and discharge of the Independent Children's Lawyer.

Murphy J ordered that the mother have sole parental responsibility for all major long-term issues concerning the child, subject to specific procedural requirements for consulting the father. The child was ordered to live with the mother and have no face-to-face time with the father. Communication between the father and child was restricted to letters, cards, and gifts sent via Australia Post, with no other form of communication permitted. The Independent Children's Lawyer was to be discharged upon compliance with certain orders or by a specified date.

Orders

Orders of the court

Parental Responsibility

IT IS THIS DAY ORDERED in respect of the child … born … August 2002, THAT:

The mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:

(a) Use her best endeavours to advise the father in writing of the decision intended to be made;

(b) Seek the father’s written response in relation thereto;

(d) Advise the father in writing as soon as reasonably practicable of her ultimate decision.

The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:

(a) Keep the other informed of their current residential address;

(b) Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child attends or undertakes as the case may be;

(d) Authorise any person, institution or body referred to in the previous sub-paragraph to provide to the other parent any and all such information in respect of the treatment of the child, or her activities as the case may be, as the other parent might reasonably require;

(e) Have the child’s school/s provide to the other parent a copy of the child’s report cards, together with any other written report issued by the school in respect of the child;

(f) Authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of the child, including, but not limited to, her social, sporting and extra-curricular activities as the other parent might reasonably require.

In order to give better effect to each of the above Orders, a copy of these orders and the reasons for judgment be approved for publication to each of the persons or institutions referred to in sub-paragraph (b) of the previous order but the publication of no other “account of the proceedings” within the meaning of s 121 of the Act is approved.

The Independent Children’s Lawyer shall request from the mother or father, as the case may be, a list of such persons or institutions and each party shall forthwith comply with any such request and thereafter, the Independent Children’s Lawyer shall provide each such person or institution with these orders and the reasons.

As and from the date of discharge of the appointment of the Independent Children’s Lawyer in accordance with these orders each of the parties shall do all such things as are necessary to give effect to Order (3) from time to time.

Live With and Time

The child shall live with the mother.

The child shall spend no face to face time with the father.

Communicate

The father shall be at liberty to communicate with the child at all such times as he might choose by letter or card sent via Australia Post and to forward gifts to the child for her birthday, Christmas, or other special occasions of his choosing, with such gift to be forwarded by pre-paid post.

The father shall not otherwise communicate with the child.

The Independent Children’s Lawyer

10.

The Independent Children’s Lawyer is discharged as and from compliance with Order (4), or on 28 February 2009, whichever is the sooner.

IT IS FURTHER ORDERED:

11.

Pursuant to Rule 17.01 of the Family Law Rules 2004, these orders shall take effect:

(a) For the purposes of Rule 22.03(1) (relating to the commencement of the appeal period) from 16 January 2009;

(b) Otherwise, from 9 January 2009.

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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