Swefford and Tarbell - [2013] FamCA 39

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL

[2013] FamCA 39

FAMILY LAW – CHILDREN – interim – where the mother asserts Rice & Asplund is not good law – in the alternative, the mother asserts the deterioration of the child’s mental health is a significant changed circumstance – where it was held that regard must be had to Rice & Asplund – where it was held there have been no significant changed circumstances, or in the alternative that the current arrangements are in the child’s best interests – application dismissed

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT:

Ms Swefford

RESPONDENT:

Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER:

Christos Christaki

FILE NUMBER:

SYC

889

2008

DATE DELIVERED:

30 January 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

22 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

KDB Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Pending further order:

Applications 7, 8 and 9 in the mother’s Amended Application in a Case filed 15 November 2012 are dismissed and order 7 as sought by the mother in her Application in a Case filed 10 October 2012 is dismissed.
The father have sole parental responsibility in respect to all long term issues relating to the child D Tarbell born … August 2004. Before making and implementing decisions about long term issues, the father is to give 21 days written notice to the mother of the decision he intends to make and consider any view expressed by the mother in writing within 14 days after giving her the notice.
Application 2 in the father’s Response filed 20 November 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 889 of 2008

Ms Swefford

Applicant

And

Mr Tarbell

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This is another application by the mother for interim parenting orders in relation to the child D (“the child”). At the date of this interim hearing, it had been exactly one year since Loughnan J had made parenting orders on an interim basis. The mother unsuccessfully prosecuted an appeal against those interim orders. The mother says it is unclear, given the evidence, why she was unsuccessful before Loughnan J (paragraph 5 of the mother’s written submissions) and why the Full Court did not address the errors made by his Honour (paragraph 51 of the mother’s written submissions).
The mother has asked me to look again, on an interim basis, and change the existing parenting arrangements.

DOCUMENTS RELIED UPON

These are set out in Schedule 1.

APPLICATIONS

The mother made an application for alteration of existing parenting orders. Her amended application of 15 November 2012 applies for the following…

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 Swefford and Tarbell

Details

AGLC: SWEFFORD & TARBELL [2013] FamCA 39
Case: [2013] FamCA 39
Decision Date: 30 January 2013

CaseChat Overview and Summary

Watts J heard an application concerning parental responsibility for a child, D Tarbell. The dispute arose between the child's mother and father, who sought to resolve issues regarding long-term decision-making for their child.

The primary legal issue before the court was the allocation of parental responsibility for long-term issues concerning the child. The court was required to determine which parent, if either, should have the ultimate authority to make decisions regarding these significant matters, and what, if any, role the other parent should play in that process.

Watts J ordered that the father have sole parental responsibility for all long-term issues relating to the child. However, this was subject to a condition that the father must provide the mother with 21 days' written notice of any intended decision on long-term matters. The mother would then have 14 days to express her views in writing, which the father was required to consider before implementing his decision. Certain applications made by both the mother and father were dismissed.

Orders

Orders of the court

Pending further order:

Applications 7, 8 and 9 in the mother’s Amended Application in a Case filed 15 November 2012 are dismissed and order 7 as sought by the mother in her Application in a Case filed 10 October 2012 is dismissed.

The father have sole parental responsibility in respect to all long term issues relating to the child D Tarbell born … August 2004. Before making and implementing decisions about long term issues, the father is to give 21 days written notice to the mother of the decision he intends to make and consider any view expressed by the mother in writing within 14 days after giving her the notice.

Application 2 in the father’s Response filed 20 November 2012 is dismissed.

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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