Small and Small - [2016] FamCA 433

FAMILY COURT OF AUSTRALIA

SMALL & SMALL

[2016] FamCA 433

FAMILY LAW – CHILDREN – final orders – where the parties are in dispute as to the parenting arrangements of the children – where it has been a significant period of time since the father spent any time with the children – where the mother alleges a history of domestic violence and sexual abuse perpetrated by the father against her and the children – where the father denies the allegations – where it is ordered that the mother have sole parental responsibility and that the children live with her – where the father’s application is dismissed.

Family Law Act 1975 (Cth) s 60CA, 60B, 60CC, 65DAA, 61DA, 69ZW, 69ZQ, 69ZR, 69ZT

Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Jones v South Eastern & Chatham Railway Company’s Managing Committee (1918) 87 LJKB 775
Loddington & Derringford (No 2) [2008] FamCA 925
Maluka & Maluka (2011) FLC 93-464
Maluka & Maluka [2012] FamCA 373
MRR v GR (2010) 240 CLR 461
Sigley & Evor [2011] FamCAFC 22
Soulos & Sorbo [2015] FamCA 196
Wang & Dennison (No 2) [2009] FamCA 1251

APPLICANT:

Mr Small

RESPONDENT:

Ms Small

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

3193

2009

DATE DELIVERED:

2 June 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

4,5,6,7,8 August 2014, 20,21,22 October 2014,1,2, 4 December 2014, 22 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dillon

SOLICITOR FOR THE APPLICANT:

Calderwood Atkinson

COUNSEL FOR THE RESPONDENT:

Ms Dubarry

SOLICITOR FOR THE RESPONDENT:

Women's Legal Service SA

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

The mother have sole parental responsibility for C born … 2004 and D born … 2005 (“the children”).
That the children live with the mother.
That the father be at liberty to send cards, letters and gifts to the children on no more than one (1) occasion each month and at a postal address provided by the mother and that the mother do ensure that the same are read to and provided to the children.
That the father be authorised to receive direct from the children’s school (at his expense) information regarding the children’s attendance and progress, including but not limited to school reports, school photos and parent newsletters.
That the father be able to speak to the children’s school and school representatives concerning the children’s education.
That the mother provide the father with the full names, address and contact numbers of all doctors and educational specialists with whom the children are referred or treated and that the father be entitled to obtain all information and have the mother authorise him to access all educational and medical records.
That the mother do provide to the father no less than three (3)…

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 Small and Small

Details

AGLC: Small and Small [2016] FamCA 433
Case: [2016] FamCA 433
Decision Date: 2 June 2016

CaseChat Overview and Summary

In the matter of *Small and Small*, heard before Berman J, the dispute concerned parenting orders for two children, C and D. The orders sought to establish the future arrangements for the children's care, contact, and information sharing between their parents.

The court was required to determine the appropriate allocation of parental responsibility, the primary residence of the children, and the nature and extent of the father's future contact and access to information about the children. Additionally, the court considered the need for orders restraining denigration of either parent in the children's presence and the discharge of an Independent Children's Lawyer.

Berman J ordered that the mother have sole parental responsibility for the children and that they live with her. The father was granted limited liberty to send cards, letters, and gifts monthly, with the mother to ensure these were provided to the children. The father was authorised to receive information regarding the children's attendance and progress from their school at his expense and to speak with school representatives concerning their education. The mother was also ordered to provide the father with the contact details of the children's medical and educational specialists and to authorise his access to their records. Furthermore, the mother was directed to provide the father with current photos of the children every three months. Both parents were restrained from denigrating each other in the children's presence. The order appointing the Independent Children's Lawyer was discharged.

Orders

Orders of the court

The mother have sole parental responsibility for C born … 2004 and D born … 2005 (“the children”).

That the children live with the mother.

That the father be at liberty to send cards, letters and gifts to the children on no more than one (1) occasion each month and at a postal address provided by the mother and that the mother do ensure that the same are read to and provided to the children.

That the father be authorised to receive direct from the children’s school (at his expense) information regarding the children’s attendance and progress, including but not limited to school reports, school photos and parent newsletters.

That the father be able to speak to the children’s school and school representatives concerning the children’s education.

That the mother provide the father with the full names, address and contact numbers of all doctors and educational specialists with whom the children are referred or treated and that the father be entitled to obtain all information and have the mother authorise him to access all educational and medical records.

That the mother do provide to the father no less than three (3) current photos of the children on each occasion with such photos to be forwarded every three (3) months to a postal address provided by the father.

That the parties be restrained from denigrating the other in the presence of the children or allowing any other person to do so.

That the order appointing the Independent Children’s Lawyer be discharged.

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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