Thompson and Edmond - [2016] FCCA 1509

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMPSON & EDMOND

[2016] FCCA 1509

Catchwords:
FAMILY LAW – Parenting – unacceptable risk – parental responsibility – best interests of the child.

Legislation:

Family Law Act 1975(Cth), Part VII

Evidence Act 1995

Amador & Amador [2009] FamCAFC 196
B & B (1988) FLC 91-978
Briginshaw & Briginshaw (1938) 60 CLR 336
Champness & Hanson [2009] FamCAFC 96
M & M (1988) FLC 91-979
Malburon and Anor & Waldlow [2013] FamCAFC 191
Moose & Moose [2008] FamCAFC108
Qantas Airways Limited v Gava [2008] FCR 537

Applicant:

MR THOMPSON

Respondent:

MS EDMOND

File Number:

PAC 5487 of 2013

Judgment of:

Judge Middleton

Hearing date:

21 January 2016

Date of Last Submission:

22 January 2016

Delivered at:

Newcastle

Delivered on:

22 June 2016

REPRESENTATION

The Applicant:

In Person

Counsel for the respondent :

Mr Flaherty

Solicitor for the Respondent:

Markham Geikie Farrugia

Solicitors for the Independent Children’s Lawyer:

Mr Brown, Browns The Family Lawyers

ORDERS

All previous parenting orders are discharged.
The children, X, born (omitted) 2008 and Y, born (omitted) 2012, (the children) live with the mother.
The mother shall have sole parental responsibility for the major long term issues for the children with such issues to include but not limited to:
(a)the child’s education;
(b)the child’s religious and cultural upbringing; and
(c)the child’s health.
Except in the event of an emergency involving the children, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)The mother shall inform the father about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing; and
(b)the mother shall give the father 14 days to respond; and
(c)the mother shall consider the father’s views/response when coming to her decision; and
(d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
The children spend no time with the father.
The mother and father shall:
(a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 48 hours of such change; and
(b)notify the other at least 21 days prior to relocating their residence; and
(c)inform the other as soon as is reasonably practicable of any medical emergency involving the children.
Within 14 days of receiving the same, the mother shall provide the father with a copy of any school report relating to the children.
Neither parent denigrate the other, their partners or their family to, or in front, or within hearing of, the children and shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the children and failing the third parties’ compliance with such direction shall remove the children from that…

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 Thompson and Edmond

Details

AGLC: Thompson and Edmond [2016] FCCA 1509
Case: [2016] FCCA 1509
Decision Date: 22 June 2016

CaseChat Overview and Summary

In *Thompson and Edmond*, heard by Judge Middleton, the dispute concerned parenting orders for two children. The mother sought orders for the children to live with her and for her to have sole parental responsibility for significant long-term issues, with specific provisions for consultation with the father. The father sought orders for the children to spend time with him.

The court was required to determine the best interests of the children in relation to their living arrangements, parental responsibility, and the extent of time, if any, they should spend with each parent. The court also had to consider the appropriate mechanisms for communication and decision-making between the parents regarding the children's welfare, and the need to protect the children from parental conflict.

The court's reasoning, as reflected in the orders, indicates a determination that the children should live with the mother and that she should have sole parental responsibility for major long-term issues, including education, religious and cultural upbringing, and health. While granting the mother sole responsibility, the court stipulated a detailed process for consultation with the father on these matters, requiring the mother to inform him in writing of proposed decisions and reasons, allow him 14 days to respond, consider his views, and then inform him of her final decision. Crucially, the court ordered that the children spend no time with the father, and imposed strict prohibitions on denigration of either parent and discussion of the proceedings with the children.

The orders discharged all previous parenting orders and dismissed outstanding applications. The children were ordered to live with the mother, who was granted sole parental responsibility for major long-term issues, subject to a detailed consultation process with the father. The children were to spend no time with the father. Further orders addressed communication, the prohibition of denigration, and the confidentiality of proceedings.

Orders

Orders of the court

All previous parenting orders are discharged.

The children, X, born (omitted) 2008 and Y, born (omitted) 2012, (the children) live with the mother.

The mother shall have sole parental responsibility for the major long term issues for the children with such issues to include but not limited to:

(a) the child’s education;

(b) the child’s religious and cultural upbringing; and

Except in the event of an emergency involving the children, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:

(a) The mother shall inform the father about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing; and

(b) the mother shall give the father 14 days to respond; and

(d) the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

The children spend no time with the father.

The mother and father shall:

(a) keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 48 hours of such change; and

(b) notify the other at least 21 days prior to relocating their residence; and

Within 14 days of receiving the same, the mother shall provide the father with a copy of any school report relating to the children.

Neither parent denigrate the other, their partners or their family to, or in front, or within hearing of, the children and shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the children and failing the third parties’ compliance with such direction shall remove the children from that environment immediately.

Neither parent shall discuss these proceedings with the children.

10.

The mother has leave to provide a copy of the family report prepared by Ms Edmond, dated 28 March 2015 and the reasons for judgment delivered 23 June 2016 to any Counsellor the children may attend in the future.

11.

The independent children’s lawyer is discharged.

12.

All outstanding applications are 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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