SACHS & RAIGANS - [2020] FamCA 133

FAMILY COURT OF AUSTRALIA

SACHS & RAIGANS

[2020] FamCA 133

FAMILY LAW – CHILDREN – Orders by Consent – Order that mother have sole parental responsibility for the child – Order that the child live with the mother – Order that father have no time or communication with the child – Specific issues orders.

FAMILY LAW – CHILDREN – Orders by Determination – Order that child not be home schooled and attend an appropriate formal school for the purposes of her education.

Family Law Act 1975 (Cth) s 60CC

J v C in [1969] 1 All ER 824

Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Mr Sachs

RESPONDENT:

Ms Raigans

INDEPENDENT CHILDREN’S LAWYER:

Mr Murray

FILE NUMBER:

LNC

479

2014

DATE DELIVERED:

17 February 2020

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

17 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gibson

SOLICITOR FOR THE APPLICANT:

Charmaine Gibson

COUNSEL FOR THE RESPONDENT:

Mr Turnbull

SOLICITOR FOR THE RESPONDENT:

Bishops

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Murray

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Murray & Associates

Orders

BY CONSENT

Subject to the following orders, Ms Raigans (‘the mother’) have sole parental responsibility for X born … 2010 (‘the child’).
The child live with the mother.
There be no orders for time or communication between Mr Sachs (‘the father’) and the child.
The Independent Children’s Lawyer be directed and is given leave to provide to the child’s General Medical Practitioner a copy of the following:-
(a)the report of Dr B dated 27 August 2019;
(b)the amended family report dated 13 April 2017; and
(c)a copy of these orders.
IT IS REQUESTED that the child’s General Medical Practitioner (‘the child’s GP’) provide a copy of the reports and this order to any subsequent General Medical Practitioner/s of the child.
The child’s GP (or subsequent General Medical Practitioner) may provide copies of these orders and reports set out in paragraph 4 above to other medical professionals to whom the child is referred AND IT IS NOTED that the mother requests that no identifying material be provided to the father, in terms of the mother and the child’s address.
IT IS FURTHER REQUESTED the child’s GP (or other medical professionals) not provide the child or mother’s residential address to the father.
The mother keep the father informed, from time to time, as to the child’s health and keep the father updated as to the name of the child’s General Medical Practitioner/s and any other health care practitioners and the father is authorised, pursuant to these orders, to have discussions with such health care professionals, provided at all times that the mother and the child’s address is not disclosed to the father.
The mother, or someone on the mother’s behalf, provide to the father, at the father’s expense, within seven (7) days of their issue to her, copies of the following:-
(a)all school reports and other school information generally provided to the parents by forwarding the same 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 SACHS & RAIGANS

Details

AGLC: SACHS & RAIGANS [2020] FamCA 133
Case: [2020] FamCA 133
Decision Date: 17 February 2020

CaseChat Overview and Summary

In the matter of SACHS & RAIGANS, Benjamin J made orders by consent concerning the parental responsibility, residence, and communication of a child. The dispute involved the mother, Ms Raigans, and the father, Mr Sachs, regarding arrangements for their child.

The court was required to determine the terms of consent orders relating to the child's upbringing. Specifically, the orders addressed who would have sole parental responsibility, where the child would live, and the extent of any time or communication between the father and the child. Additionally, the court considered orders concerning the child's education, requiring the child to attend formal schooling rather than being home-schooled.

Benjamin J made orders by consent, granting the mother sole parental responsibility for the child and ordering that the child live with the mother. Crucially, there were no orders for time or communication between the father and the child. The court also directed that the Independent Children’s Lawyer be permitted to provide specific reports and the consent orders to the child's General Medical Practitioner, with a request that this information, including addresses, not be disclosed to the father. The mother was ordered to keep the father informed about the child's health and schooling, and to provide him with school reports and other information at his expense, while ensuring the mother and child's address remained undisclosed to the father. The court also ordered that the child not be home-schooled and attend an appropriate formal school.

Orders

Orders of the court

BY CONSENT

Subject to the following orders, Ms Raigans (‘the mother’) have sole parental responsibility for X born … 2010 (‘the child’).

The child live with the mother.

There be no orders for time or communication between Mr Sachs (‘the father’) and the child.

The Independent Children’s Lawyer be directed and is given leave to provide to the child’s General Medical Practitioner a copy of the following:-

(a) the report of Dr B dated 27 August 2019;

(b) the amended family report dated 13 April 2017; and

IT IS REQUESTED that the child’s General Medical Practitioner (‘the child’s GP’) provide a copy of the reports and this order to any subsequent General Medical Practitioner/s of the child.

The child’s GP (or subsequent General Medical Practitioner) may provide copies of these orders and reports set out in paragraph 4 above to other medical professionals to whom the child is referred AND IT IS NOTED that the mother requests that no identifying material be provided to the father, in terms of the mother and the child’s address.

IT IS FURTHER REQUESTED the child’s GP (or other medical professionals) not provide the child or mother’s residential address to the father.

The mother keep the father informed, from time to time, as to the child’s health and keep the father updated as to the name of the child’s General Medical Practitioner/s and any other health care practitioners and the father is authorised, pursuant to these orders, to have discussions with such health care professionals, provided at all times that the mother and the child’s address is not disclosed to the father.

The mother, or someone on the mother’s behalf, provide to the father, at the father’s expense, within seven (7) days of their issue to her, copies of the following:-

(a) all school reports and other school information generally provided to the parents by forwarding the same to the father at his nominated postal and/or email address;

(b) provide to the father, at his expense, any school photographs or any other documents generally available for purchase from the school by the parents; and

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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