Smith and Duke - [2016] FamCA 131

FAMILY COURT OF AUSTRALIA

SMITH & DUKE

[2016] FamCA 131

FAMILY LAW – CHILDREN – final orders – where the litigation is recommenced – where the father seeks orders for sole parental responsibility and that the child live with him – where the mother seeks orders for sole parental responsibility, that the child live with her and spend no time with the father – where the child is reluctant to spend time with the father – where the reluctance is without explanation – where the father has not seen the child in over 12 months – where the father alleges the mother failed to encourage a relationship between the father and child – where the father alleges this occurred following his refusal to allow her to relocate with the child – where the mother rejects the allegation and says that she promoted the child’s time with the father – where the observations of the family consultant are accepted by the Court but the recommendations provide no assistance – where consideration is given to the best interests of the child and the primary and additional considerations – where consideration is given to the definition of a “meaningful relationship” – where the Court does not consider there to be a risk of abuse, neglect or family violence – where it is ordered that the mother have sole parental responsibility and that the child live with the mother – where it is ordered that subject to the child’s wishes the child will spend time with the father.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 62B, 62G(2), 65DA, 65DAA

Baglio & Baglio [2013] FamCA 105
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Dennison & Wang [2010] FamCAFC182
Mazorski & Albright (2007) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
Sigley & Evor (2011) 44 Fam LR 439
St Claire & St Claire and Ors [2013] FamCA 108
Wang & Dennison (No 2) [2009] FamCA 1251

APPLICANT:

Ms Smith

RESPONDENT:

Mr Duke

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

4833

2009

DATE DELIVERED:

3 March 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

9, 10,11, 12, 13, 17 and 19 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Jordan & Fowler

COUNSEL FOR THE RESPONDENT:

Mr McQuade

SOLICITOR FOR THE RESPONDENT:

Christopher Ganzis & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

That all previous orders be discharged.
The mother shall have sole parental responsibility for the child B born … 2006 (“the child”) on condition that:
(a)the mother will advise the father in writing (electronically or otherwise) and provide her views about any major issue affecting the child but in particular the child’s education and health;
(b)the mother shall consult with the father with regard to such issues and the parties will make a genuine…

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 Smith and Duke

Details

AGLC: Smith and Duke [2016] FamCA 131
Case: [2016] FamCA 131
Decision Date: 3 March 2016

CaseChat Overview and Summary

In the matter of Smith and Duke, Berman J of the Family Court of Australia made orders concerning the parental responsibility and living arrangements for a child, B, born in 2006. The dispute centred on the future care and upbringing of the child, with the court ultimately determining the specific terms of the parenting orders.

The court was required to determine the extent of parental responsibility to be allocated to each parent, the primary residence of the child, and the nature and frequency of the child's time with the non-resident parent. Further issues included the communication protocols between the parents regarding the child's welfare, the facilitation of the child's contact with the father, and the provision of information about the child's education and health. The court also considered the discharge of previous orders and the appointment of an Independent Children's Lawyer.

Berman J ordered that the mother have sole parental responsibility for the child, subject to specific conditions requiring consultation with the father on major issues affecting the child's education and health, with the mother retaining the final decision-making power if agreement could not be reached. The child was ordered to live with the mother, and detailed provisions were made for the child to spend time with the father, including alternate weekends, school holidays, and specific public holidays, with consideration given to the child's wishes. The orders also stipulated communication requirements, the father's right to send correspondence, and the mother's obligation to facilitate contact and provide information regarding the child's schooling and health.

The court discharged all previous orders and removed the matter from the Active Pending List, dismissing all applications. Pursuant to sections 62B and 65DA(2) of the *Family Law Act 1975* (Cth), the orders included an annexed document detailing the obligations, consequences of contravention, and sources of assistance for compliance.

Orders

Orders of the court

That all previous orders be discharged.

The mother shall have sole parental responsibility for the child B born … 2006 (“the child”) on condition that:

(a) the mother will advise the father in writing (electronically or otherwise) and provide her views about any major issue affecting the child but in particular the child’s education and health;

(b) the mother shall consult with the father with regard to such issues and the parties will make a genuine effort to come to a joint decision about any such issues; and

(c) if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing (electronically or otherwise) of that decision.

That the child shall live with the mother.

That subject to the child’s wishes as conveyed to the father by the mother in writing (electronically or otherwise), the child do spend time with the father as follows:

(a) commencing 26 February 2016 from the close of school on Friday until the commencement of school on Monday in each alternate weekend;

(b) for one half of each school holidays at times to be agreed and in the absence of agreement the first half;

(c) from 10:00 am until 6:00 pm on Father’s Day PROVIDED that the child’s time with the father shall be suspended from 10:00 am until 6:00 pm on Mother’s Day;

(d) from 4:00 pm on Christmas Eve until 2:00 pm on Christmas Day in 2016 and each alternate year and thereafter with the mother in 2017 and each alternate year thereafter;

(e) from 2:00 pm on Christmas Day until 4:00 pm on Boxing Day in 2017 and each alternate year thereafter and with the mother in 2018 and each alternate year thereafter;

(f) for such other time as may be agreed.

That the father is at liberty to send letters, cards and gifts to the child and that the mother shall ensure that they are provided to the child, retained and opened in the child’s presence as soon after receipt as is practicable.

That the mother is to facilitate the child spending time with the father and/or communicating with him other than as provided for in paragraph 4 of these orders if the child expresses a wish to do so.

That the mother is to keep the father informed of the school at which the child attends and to provide the father with at least fourteen (14) days advance notice of any change.

The mother shall authorise each school at which the child attends to release to the father materials usually provided to parents including copies of school reports, newsletters and the opportunity to purchase school photographs.

That the mother shall notify the father as soon as possible if the child is diagnosed with any serious or ongoing medical condition or suffers a significant injury.

10.

Both parties shall keep the other informed as to their address and contact details and to provide the other with at least fourteen (14) days advance notice of any change.

11.

That the appointment of the Independent Children’s Lawyer is discharged.

12.

That all matters be removed from the Active Pending List and all applications be dismissed.

13.

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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