SWANSON & PATON - [2015] FCCA 1541

FEDERAL CIRCUIT COURT OF AUSTRALIA

SWANSON & PATON

[2015] FCCA 1541

Catchwords:
FAMILY LAW – Parenting – 14 year old child with type 1 diabetes – father’s untreated mental health issues – father’s behaviour – child would be at unacceptable risk if father spends time with child.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA

Waterford and Waterford [2013] FamCA 33
Mazorski and Albright [2007] 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR and GR [2010] HCA 4
M and M (1988) 166 CLR 69
N & S & The Separate Representative (1996) FLC 92-655
Licha v Wunscher [2008] FamCA 147
Innocente and Innocente [2007] FamCA 586

Applicant:

MR SWANSON

Respondent:

MS PATON

File Number:

MLC 280 of 2014

Judgment of:

Judge Harland

Hearing date:

7 May 2015

Date of Last Submission:

7 May 2015

Delivered at:

Melbourne

Delivered on:

5 June 2015

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Grabau

Counsel for the Independent Children's Lawyer:

Mr Marchetti

Solicitors for the Independent Children's Lawyer:

David Stagg Tonkin & Co

ORDERS

That the mother have sole parental responsibility for X (“the child”) born (omitted) 2001.
That the child lives with the mother.
That the father be and is hereby restrained from contacting or communicating with the child save in accordance with these orders.
That the father be permitted to provide copies of the child inclusive memorandum, the family report and Dr W’s report to any person treating him.
That the father may communicate with the child by sending her letters, cards and gifts by ordinary pre-paid post provided by the mother and the mother shall do all things reasonably necessary to deliver such items to the child provided that the mother be at liberty to open and read items of correspondence and inspect gifts and, in her absolute discretion, determine that an item should not be given to the child if it contains material which is inappropriate or likely to cause the child emotional distress.
For the purpose of order (5) the mother will advise the father of a postal address, which need not be her residential address, within 28 days of the date of these orders.
That the mother does all things reasonably necessary to encourage the child to send letters, cards and gifts to the father by ordinary pre-paid post.
That it be within the absolute discretion of the mother to determine :
(a)whether the father may spend time with the child, and the time, duration and place at which that may occur;
(b)     whether any such time be supervised and if it is :
(i)     the nature of such supervision; and
(ii)    the identity of the supervisor;
(c)whether the father can have telephone communication with the child; and
(d)     the nature and extent of any such telephone communication;
and unless the parties agree to the contrary, the costs of any supervision of the father’s time with the child be borne by the father.

IT IS NOTED…

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 SWANSON & PATON

Details

AGLC: SWANSON & PATON [2015] FCCA 1541
Case: [2015] FCCA 1541
Decision Date: 5 June 2015

CaseChat Overview and Summary

In the matter of SWANSON & PATON, heard before Judge Harland, the dispute concerned the parental responsibility and living arrangements for a child, X. The orders made by the court addressed the father's contact and communication with the child, as well as the mother's discretion in managing such interactions.

The court was required to determine the extent of the father's parental responsibility, where the child should live, and the nature and conditions of any contact or communication between the father and the child. Specifically, the court had to consider the father's ability to communicate with the child and the mother's role in facilitating or restricting this communication, including the supervision of any time spent together.

Judge Harland ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The father was restrained from contacting or communicating with the child except as permitted by the orders. The father was allowed to provide copies of certain documents to his treating professionals. Communication by post was permitted, with the mother having the discretion to open, read, and withhold any items deemed inappropriate or likely to cause the child distress. The mother was also given absolute discretion regarding any time the father might spend with the child, including its supervision, and any telephone communication, with the costs of supervision to be borne by the father unless otherwise agreed. The mother was also directed to encourage the child to send correspondence and gifts to the father.

Orders

Orders of the court

That the mother have sole parental responsibility for X (“the child”) born (omitted) 2001.

That the child lives with the mother.

That the father be and is hereby restrained from contacting or communicating with the child save in accordance with these orders.

That the father be permitted to provide copies of the child inclusive memorandum, the family report and Dr W’s report to any person treating him.

That the father may communicate with the child by sending her letters, cards and gifts by ordinary pre-paid post provided by the mother and the mother shall do all things reasonably necessary to deliver such items to the child provided that the mother be at liberty to open and read items of correspondence and inspect gifts and, in her absolute discretion, determine that an item should not be given to the child if it contains material which is inappropriate or likely to cause the child emotional distress.

For the purpose of order (5) the mother will advise the father of a postal address, which need not be her residential address, within 28 days of the date of these orders.

That the mother does all things reasonably necessary to encourage the child to send letters, cards and gifts to the father by ordinary pre-paid post.

That it be within the absolute discretion of the mother to determine :

(a) whether the father may spend time with the child, and the time, duration and place at which that may occur;

(b) whether any such time be supervised and if it is :

(i) the nature of such supervision; and

(ii) the identity of the supervisor;

(d) the nature and extent of any such telephone communication;

and unless the parties agree to the contrary, the costs of any supervision of the father’s time with the child be borne by the father.

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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