STAPLETON & BRYANT - [2017] FamCA 1005

FAMILY COURT OF AUSTRALIA

STAPLETON & BRYANT

[2017] FamCA 1005

FAMILY LAW – CHILDREN – Final parenting orders – parental responsibility – with whom the child lives – time the child should spend with either parent – order that the child live with the mother – order that the child spend time with the father in accordance with her wishes – where the father is at liberty to email the child once per week to an agreed email account – where the presumption of equal shared parental responsibility is rebutted – order that the mother have sole parental responsibility – whether a vexatious proceedings order should be made against the father on the application of the mother pursuant to s 102QB of the Family Law Act 1975 (Cth) – application pursuant to s 102QB dismissed.

Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 65DAC, 69ZT, 69ZT(3), 69ZX(3), 102Q, 102QB, Family Law Rules 2004 (Cth)
Attorney General(NSW) v Wentworth (1988) 14 NSWLR 481 Bryant & Stapleton [2008] FamCA 451 Bryant & Stapleton [2010] FamCAFC 5 Bryant & Stapleton [2016] FamCAFC 12 (11 February 2016) Cannon & Acres [2014] FamCA 104

Rice & Asplund (1979) FLC 90-725
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle [2017] FamCAFC 210
Potier v Attorney General (NSW) (2015) 89 NSWLR 284
Stapleton & Bryant [2015] FCCA 2923 (18 August 2015)
Stapleton & Bryant [2016] FamCA 242

APPLICANT:

Ms Stapleton

RESPONDENT:

Mr Bryant

INDEPENDENT CHILDREN’S LAWYER:

Clark Family Lawyers

FILE NUMBER:

MLC

553

2007

DATE DELIVERED:

17 November 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

7, 10, 11, 12 & 13 April and 8 & 9 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Vivianne Morkos

SOLICITOR FOR THE APPLICANT:

Harper Buscombe & Madden

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Pierre Baume

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Clark Family Lawyers

Orders

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The mother have sole parental responsibility for the child S born … 2003 (“the child”).
The child live with the mother.
The child spend time and communicate with the father in accordance with her wishes and the mother facilitate any request by the child to spend time and/or communicate with the father. Text messages, phone calls and any such other use of social media communication is to be initiated by the child.
The father be at liberty to email the child once per week to an agreed email account.
Should the child wish to spend time with the father, all changeovers occur at Suburb H McDonald’s and or such other place agreed in writing between the mother and the father.
The father be restrained by injunction from the following:
(a)Abusing, belittling, insulting, or otherwise denigrating the mother to or in the presence or hearing of the child or permitting any other person to do so;
(b)Abusing, belittling,…

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.

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Details

AGLC: STAPLETON & BRYANT [2017] FamCA 1005
Case: [2017] FamCA 1005
Decision Date: 17 November 2017

CaseChat Overview and Summary

This matter concerned parenting orders between the mother and the father regarding their child, S. The dispute involved the allocation of parental responsibility, the child's living arrangements, and the nature and extent of the child's time and communication with each parent. The court was required to determine the best interests of the child in light of the circumstances presented.

The court was tasked with determining the appropriate parenting orders, including whether the mother should have sole parental responsibility, where the child should live, and the terms of the child's time and communication with the father. Additionally, the court considered whether to grant an injunction restraining the father from certain behaviours towards the mother and the child, and whether to dismiss the mother's application to declare the father a vexatious litigant. The court also addressed provisions for the father to receive school information and participate in passport applications, and the mother's authority to obtain a passport in the father's absence.

Thornton J discharged all previous parenting orders and made new orders reflecting the child's wishes. The mother was granted sole parental responsibility, and the child was ordered to live with her. The child was to spend time and communicate with the father in accordance with the child's wishes, with the mother facilitating these interactions, which were to be initiated by the child. The father was permitted to email the child weekly and was subject to several injunctions, including prohibitions against denigrating the mother or child, using physical discipline, using self-destructing emails, and attending certain school or extra-curricular events. The mother's application to declare the father a vexatious litigant was dismissed. By consent, orders were made regarding the father's receipt of school reports and the process for passport applications, with the court authorising the mother to apply for the child's passport in the father's default.

Orders

Orders of the court

THE COURT ORDERS THAT:

All previous parenting orders be discharged.

The mother have sole parental responsibility for the child S born … 2003 (“the child”).

The child live with the mother.

The child spend time and communicate with the father in accordance with her wishes and the mother facilitate any request by the child to spend time and/or communicate with the father. Text messages, phone calls and any such other use of social media communication is to be initiated by the child.

The father be at liberty to email the child once per week to an agreed email account.

Should the child wish to spend time with the father, all changeovers occur at Suburb H McDonald’s and or such other place agreed in writing between the mother and the father.

The father be restrained by injunction from the following:

(a) Abusing, belittling, insulting, or otherwise denigrating the mother to or in the presence or hearing of the child or permitting any other person to do so;

(b) Abusing, belittling, insulting, or otherwise denigrating the child;

(d) Communicating with the mother by way of “self-destructing emails” or any other form of written communication that cannot be retained by the mother;

(e) Using any “self-destructing emails” or email tracking software for emails he sends to the child;

(f) Attending the child’s school, other care providers or extra-curricular activities, other than to attend sporting events in which the child is competing which are not training.

Paragraph 10 of the mother’s Amended Initiating Application filed 13 May 2016 for the father to be declared a vexatious litigant and be restrained by injunction from filing any further applications without first seeking the leave of the Court is dismissed.

BY CONSENT IT IS ORDERED THAT:

The father be at liberty to receive school reports, newsletters, notices and photo order forms at his expense (if any) and the mother ensure that the school is authorised to provide such documents and information to the father.

10.

The mother notify the father as soon as practicable of any serious illness or injury requiring hospitalisation of the child.

11.

Upon written request by the mother to complete an Australian Passport Application for the child, the father shall complete all relevant sections of the application and return same to the mother within 14 days of receipt.

THE COURT FURTHER ORDERS THAT:

12.

In the event that the father fails to or refuses to complete the child’s passport application within 14 days of receipt of the application then pursuant to section 11 of the Australian Passports Act 2005 (Cth), the mother is authorised by this Court to apply for, obtain and maintain the child’s Australian Passport [together with any necessary visas] in the absence of the consent and/or signature of the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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