Terzi and Bourke - [2015] FamCA 1241

FAMILY COURT OF AUSTRALIA

TERZI & BOURKE

[2015] FamCA 1241

FAMILY LAW – CHILDREN – FINAL ORDERS – With whom a child lives - with whom a child spends time – with whom a child communicates – allegations of sexual abuse - allegations of violence – allegations of alcohol and drug use – orders made changing residence of child from care of the mother to the father – condition that father live with the paternal grandmother for a period of two years – orders made that mother spend significant and substantial time with the child.

Family Law Act 1975 (Cth) ss 60CC (2), (3), (4A)
APPLICANT:	Mr Terzi

RESPONDENT:

Ms Bourke

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

HBC

686

2011

DATE DELIVERED:

13 August 2015

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

2, 3, 4, 5 February, 10 March 2015, 7 May and 13 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms White

SOLICITOR FOR THE APPLICANT:

Fitzgerald & Browne

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Patrick Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

All previous parenting orders in relation to X born … 2010 (‘the child’) are vacated and discharged as and from this date.

PARENTAL RESPONSIBILITY

The Mr Terzi (‘the father’) and the Ms Bourke (‘the mother’) have shared parental responsibility for the child; and that for this purpose the father and mother will do all things necessary to:-
(a)ensure that all records (include school, medical, Social Security (and other Government agencies), cultural and other entities dealing with the care, welfare and development of the child) will note both the mother and the father as parents having shared parental responsibility for the child;
(b)from time to time as is necessary, agree on a Medical Practitioner and/or Practice who is to be the provider of general practice medical services for the child and all records will note both parents as persons with whom that Medical Practitioner or Practice may liaise and take direction and will also note the paternal grandmother, Ms B Terzi (‘the paternal grandmother’), as a person with whom Medical Practitioners may communicate, take direction and liaise with in regards to the child’s medical, psychological and emotional wellbeing AND THE COURT NOTES the parties agree that the C Medical Practice D Town shall be the child’s general practice;
(c)ensure all records will note the paternal grandmother is a person with whom any school which the child attends may communicate and liaise with from time to time regarding the child’s attendance and other issues the school deems appropriate; and
(d)ensure the school records note the paternal grandmother as an emergency contact for the school and further a person who has permission to enter the school to both ensure the child attends school and to collect the child from school.

LIVE WITH ARRANGEMENTS

Except as agreed in writing in advance between the parents…

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 Terzi and Bourke

Details

AGLC: Terzi and Bourke [2015] FamCA 1241
Case: [2015] FamCA 1241
Decision Date: 13 August 2015

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in 2010, involving the father, Mr Terzi, and the mother, Ms Bourke. The court was required to determine the arrangements for the child's parental responsibility, living arrangements, and time with each parent, as well as specific orders regarding communication, special days, and prohibitions on certain behaviours. The orders also addressed the involvement of the paternal grandmother in the child's care and education.

The court was tasked with establishing a comprehensive parenting plan that addressed shared parental responsibility, including the notification of relevant agencies and professionals. Key issues included defining the child's primary residence, the specific times the child would spend with each parent during school terms and holidays, and arrangements for special days such as birthdays, Christmas, and Easter. The court also considered injunctions relating to alcohol and drug use, denigration of parents, and the unsupervised care of the child by the mother's partner.

Benjamin J made orders vacating previous parenting orders and establishing shared parental responsibility between the father and mother. The child was to primarily reside with the father, with specific periods of time allocated to the mother, which varied depending on whether the child was attending full-time school. The orders detailed arrangements for school holidays, including an alternating system for Christmas holidays. Notably, by consent, the father was to reside with the child at the paternal grandmother's residence for two years, and the paternal grandmother was to be involved in communication with the child's medical practitioners and school. Injunctions were imposed restraining both parents from being adversely affected by alcohol while caring for the child, from exposing the child to individuals under the influence of illicit drugs or excessive alcohol, and from denigrating each other or family members in the child's presence. The mother was also restrained from leaving the child in the unsupervised care of her partner. The court also dismissed certain applications and extended the appointment of the Independent Children's Lawyer.

Orders

Orders of the court

All previous parenting orders in relation to X born … 2010 (‘the child’) are vacated and discharged as and from this date.

PARENTAL RESPONSIBILITY

The Mr Terzi (‘the father’) and the Ms Bourke (‘the mother’) have shared parental responsibility for the child; and that for this purpose the father and mother will do all things necessary to:-

(a) ensure that all records (include school, medical, Social Security (and other Government agencies), cultural and other entities dealing with the care, welfare and development of the child) will note both the mother and the father as parents having shared parental responsibility for the child;

(b) from time to time as is necessary, agree on a Medical Practitioner and/or Practice who is to be the provider of general practice medical services for the child and all records will note both parents as persons with whom that Medical Practitioner or Practice may liaise and take direction and will also note the paternal grandmother, Ms B Terzi (‘the paternal grandmother’), as a person with whom Medical Practitioners may communicate, take direction and liaise with in regards to the child’s medical, psychological and emotional wellbeing AND THE COURT NOTES the parties agree that the C Medical Practice D Town shall be the child’s general practice;

(c) ensure all records will note the paternal grandmother is a person with whom any school which the child attends may communicate and liaise with from time to time regarding the child’s attendance and other issues the school deems appropriate; and

(d) ensure the school records note the paternal grandmother as an emergency contact for the school and further a person who has permission to enter the school to both ensure the child attends school and to collect the child from school.

LIVE WITH ARRANGEMENTS

Except as agreed in writing in advance between the parents the parenting arrangements as to living with, time and communication are as follows.

The mother shall arrange for the child to remain in the primary care of the father following the making of these Orders.

The child will live with the mother on the following times in accordance with the arrangement set up in the previous interim orders until the child commences full time school in January/February 2016:-

(a) Week 1: from Friday after school, if a school day, or 4.00pm if a non-school day until Sunday at 4.00pm;

(b) Week 2: from Wednesday after school if a school day, or 4.00pm if a non-school day to 4.00pm the following Friday.

Once the child commences full time schooling from 2016 onwards the child shall live with the mother as follows:-

(a)Week 1: during school term from Friday after school until commencement of school Monday or Tuesday if the Monday is a pupil free day or a public holiday;

(b) Week 2: from Wednesday after school until Friday before school.

Once the child commences full time schooling (from 2016 onwards) the child shall live with the mother during school holidays in the following terms:-

(a) In the mid-term gazetted school holidays (the first, second and third terms) in the first week of such mid-term school holiday period commencing on the first Saturday at 10.00am to the following Saturday at 4.00pm.

(b) At the end of the fourth term for the Christmas/January school holidays, (save for Christmas Day, which is set out elsewhere in these orders, and is not included in this calculation for half of the nights on the basis) as follows:-

i. From December 2015 and each alternate year afterwards, the child shall spend the first half of such holiday period with the mother, such time to commence on the last day of the fourth term, and the second half of such holiday period with the father.

ii. From December 2016 and each alternate year afterwards, the child shall spend the first half of such holiday period with the father, such time to commence on the last day of the fourth term, and the second half of such holiday period with the mother. The child shall to be returned to the father three (3) days before the commencement of school term.

The child shall otherwise live with the father.

BY CONSENT the father shall live and reside with the child at the residence of the paternal grandmother for a period of two (2) years from the date of this order and for this purpose the paternal grandmother’s residence will be deemed to be the principle residence of the child for that period of time and the father will not change the child’s residence for that period other than with the written agreement of the mother or order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

10.

BY CONSENT the child shall remain enrolled at E School whilst Y remains enrolled at that school and such enrolment shall not be altered without the written consent of both parents or order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

11.

That notwithstanding the other orders, the child shall spend time with the parents on special days as follows:-

(a) With the father on Christmas Eve from 3.00pm until Christmas Day 3.00pm in 2015 and each alternate year thereafter and with the mother on Christmas Day from 3.00pm until Boxing Day 5.00pm in 2015 and each alternate year thereafter.

(b) With the mother on Christmas Eve from 3.00pm until Christmas Day 3.00pm in 2016 and each alternate year thereafter and with the father on Christmas Day from 3.00pm until 5.00pm Boxing Day in 2016 and each alternate year thereafter.

(c) With the father on Easter Friday from 3.00pm until Saturday 5.00pm 2015 and each alternate year thereafter and with the mother on Easter Saturday from 5.00pm until Easter Sunday 5.00pm in 2015 and each alternate year thereafter.

(d) With the mother on Easter Friday from 3.00pm until Saturday 5.00pm 2016 and each alternate year thereafter and with the father on Easter Saturday from 5.00pm until Easter Sunday 5.00pm in 2016 and each alternate year thereafter.

12.

The child shall spend two (2) hours with the parent with whom she would otherwise not be living on her birthday. Such time to be agreed and in the event the parties are unable to agree from 5.00pm to 7.00pm.

13.

In the event that the child is not otherwise living with the father on Father’s Day the time the child spends with the mother shall cease at 5.00pm on the Saturday before Father’s Day and the child shall be returned to school (if a school day) at the commencement of school or returned to the mother (if not a school day) at 9.00am on the following Monday.

14.

In the event that the child would not otherwise spend time with the mother on Mother’s Day the time the child spends with the father shall cease at 5.00pm on the Saturday before Mother’s Day and the child shall be returned to school (if a school day) at the commencement of school or returned to the father (if not a school day) at 9.00am on the following Monday.

15.

The parties shall provide each other with no less than four (4) weeks written notice of their intention to take the child out of the State of Tasmania; such notice to include the proposed travel itinerary, contact details whilst away, details as to where the child will be sleeping whilst away and evidence of return tickets, and the party consenting will not unreasonably withhold consent.

16.

Each parent shall advise the other parent of any medical appointment involving the child and keep the other parent appraised of the child’s health and treatment regime, preferably in advance where appointments are made and at least within seven (7) days of any such appointment.

17.

In the event of any emergency involving the child the parent who has the child will notify the other parent as soon as is reasonably practicable and the father will ensure that the paternal grandmother is instructed to contact the mother in the event of any emergency involving the child if the child is in her care.

18.

In the event the mother is unable to care for the child due to medical reasons that she will as soon as is practicable contact the father and/or the paternal grandmother to arrange for them the care for the child.

19.

Each parent will keep the other informed of their residential address, email address and telephone numbers where they can be contacted and each parent will notify the other within twenty four (24) hours of any change to any one or other of those particulars.

INJUNCTIONS

20.

Neither parent shall be adversely affected by alcohol whilst they have care of the child.

21.

The parties are restrained from intentionally bringing the child into contact with any person who is under the influence of illicit drugs or excessive alcohol or permitting them to remain in such contact.

22.

Neither parent will denigrate or belittle the other parent or members of the other parent’s family in the presence or hearing of the child.

23.

The mother shall ensure that the child is not left in the unsupervised care of her partner, Mr F.

24.

Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

GENERAL ORDERS

25.

Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

26.

The Application in a case filed by the made by the Independent Children’s Lawyer on 5 May 2015 is withdrawn and dismissed.

27.

All other extant applications, except costs applications, be otherwise dismissed and removed from the list of cases awaiting finalization.

28.

Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).

29.

The appointment of the Independent Children’s Lawyer be extended for a period of six (6) months from the date of these orders or such other time as is ordered within that six (6) month period.

30.

IT IS DIRECTED that within twenty eight (28) days from the date of this Order the Independent Children’s Lawyer forward to the Tasmanian State Child Protection Authorities:-

(a) a sealed copy of these orders;

(b) a copy of the reasons pursuant to which these orders were made; and

31.

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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