Russell and Purdey - [2013] FamCA 865

FAMILY COURT OF AUSTRALIA

RUSSELL & PURDEY

[2013] FamCA 865

FAMILY LAW – CHILDREN – Final Orders – with whom a child should live – with whom a child should spend time – best interests – child to live with the mother and spend supervised time with the father.

Family Law Act 1975 (Cth) s 60B; 60CA; 60CC; 61DA; 62B; 65D; 65DA; 65DAA; 69ZW
Buljubasic v Buljubasic (1999) FLC 92-865 Allesch v Maunz (2000) 2003 CLR 172 Haydon v Bennett & Anor [2012] FamCAFC 89 Sexton v Sexton [2012] FamCAFC 218

APPLICANT:

Mr Russell

RESPONDENT:

Ms Purdey

INDEPENDENT CHILDREN’S LAWYER:

Ms Kathleen Berck, Solicitor

FILE NUMBER:

BRC

1520

2012

DATE DELIVERED:

5 November 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Berman J

HEARING DATE:

15 October 2013

REPRESENTATION

THE APPLICANT:

No appearance

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Nicole Martin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Berck Solicitors

Orders

That all previous parenting orders be discharged.
That the child, B born … 2003 (“the child”), reside with the Mother.
That the Mother shall have sole parental responsibility in respect of decisions concerning the child’s long-term care, welfare and development.
That the child spend time with the Father upon such terms and conditions as may be agreed, but in any event, subject at all times to supervision upon such terms and conditions as the Mother at her sole election shall determine, on not less than four (4) occasions to take place on either the first Saturday or Sunday of each calendar month over a period of six (6) consecutive calendar months from the date of this Order.
That provided the Father shall spend time with the child in accordance with paragraph (4) hereof, then such time as provided for therein between the Father and the child for each consecutive six (6) month period until the said child reaches the age of 12 (twelve years).
If the Father shall not spend time with the child in accordance with paragraph (4) hereof, in that he shall spend time with the child on less than four (4) occasions, then save and except with the express consent of the Mother, the child shall thereafter spend no time with the Father and the Father be restrained and an injunction granted restraining him from seeking to communicate with and/or to come into physical contact with the said child.
That upon the child reaching 12 (twelve) years of age, then the Father shall spend time with and communicate with the child subject to her wishes.
That the Mother shall facilitate the child to communicate with the Father at all reasonable times.
That the Mother shall advise the Father of any major long-term decision in respect of the said child.
That the Order for the appointment of the Independent Children’s Lawyer be discharged.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the…

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 Russell and Purdey

Details

AGLC: Russell and Purdey [2013] FamCA 865
Case: [2013] FamCA 865
Decision Date: 5 November 2013

CaseChat Overview and Summary

In the matter of *Russell and Purdey*, Berman J of the Federal Circuit and Family Court of Australia considered parenting orders concerning a child born in 2003. The dispute involved the arrangements for the child's residence, time spent with each parent, and parental responsibility for decision-making.

The court was required to determine the most appropriate parenting orders for the child, considering the child's best interests. This included deciding with whom the child should reside, the extent and nature of the child's time with the Father, and the allocation of parental responsibility for long-term decisions regarding the child's care, welfare, and development. The court also had to consider the implications of the Father's compliance with any ordered time with the child and the potential consequences of non-compliance.

Berman J ordered that all previous parenting orders be discharged. The child was to reside with the Mother, who was granted sole parental responsibility for decisions concerning the child’s long-term care, welfare, and development. The Father was to spend time with the child on a supervised basis, with the Mother determining the terms and conditions of this supervision. This supervised time was to occur on at least four occasions per month for six consecutive months. The orders stipulated that if the Father failed to meet this minimum number of occasions, the child would spend no further time with him, and he would be restrained from communicating with or contacting the child, except with the Mother's express consent. Upon the child reaching 12 years of age, the Father's time and communication with the child would be subject to the child's wishes. The Mother was also ordered to facilitate the child's communication with the Father at all reasonable times and to advise him of any major long-term decisions concerning the child. The appointment of an Independent Children’s Lawyer was discharged.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the child, B born … 2003 (“the child”), reside with the Mother.

That the Mother shall have sole parental responsibility in respect of decisions concerning the child’s long-term care, welfare and development.

That the child spend time with the Father upon such terms and conditions as may be agreed, but in any event, subject at all times to supervision upon such terms and conditions as the Mother at her sole election shall determine, on not less than four (4) occasions to take place on either the first Saturday or Sunday of each calendar month over a period of six (6) consecutive calendar months from the date of this Order.

That provided the Father shall spend time with the child in accordance with paragraph (4) hereof, then such time as provided for therein between the Father and the child for each consecutive six (6) month period until the said child reaches the age of 12 (twelve years).

If the Father shall not spend time with the child in accordance with paragraph (4) hereof, in that he shall spend time with the child on less than four (4) occasions, then save and except with the express consent of the Mother, the child shall thereafter spend no time with the Father and the Father be restrained and an injunction granted restraining him from seeking to communicate with and/or to come into physical contact with the said child.

That upon the child reaching 12 (twelve) years of age, then the Father shall spend time with and communicate with the child subject to her wishes.

That the Mother shall facilitate the child to communicate with the Father at all reasonable times.

That the Mother shall advise the Father of any major long-term decision in respect of the said child.

10.

That the Order for the appointment of the Independent Children’s Lawyer be discharged.

11.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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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