Tulley and Lindmann-Tulley (No 2) - [2009] FamCA 1083

FAMILY COURT OF AUSTRALIA

TULLEY & LINDMANN-TULLEY (NO. 2)

[2009] FamCA 1083

FAMILY LAW – CHILDREN – best interests of the child – parental responsibility – meaningful relationship – with whom a child lives – with whom a child spend time

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Native Title Act 1993 (Cth)

AIF v AMS (1999) 199 CLR 160
Brown & Crawford [2009] FamCA 96
CDJ v VAJ [1998] 197 CLR 172 219
Chappell & Chappell [2008] FamCAFC 143
G v C [2006] FamCA 994
Godfrey v Sanders [2007] FamCA 102
Marsden & Winch (No3) [2007] FamCA 1364
Mazorski v Albright [2007] FamCA 520
McCue v Costa [2009] FamCAFC 92
Mulvany & Lane [2009] FamCA 76
U v U (2002) 211 CLR 238

APPLICANT:

Mr Tulley

RESPONDENT:

Ms Lindmann-Tulley

INDEPENDENT CHILDREN’S LAWYER:

Ms Dooley

FILE NUMBER:

BRC

1154

2007

DATE DELIVERED:

17 November 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

12-14 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Walker

SOLICITOR FOR THE APPLICANT:

Western Legal
Fremantle

COUNSEL FOR THE RESPONDENT:

Ms Anderson

SOLICITOR FOR THE RESPONDENT:

McCowans Solicitors

Surfers Paradise

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Mr Fleetwood

SOLICITOR FOR THE
INDEPENDENT CHILDREN'S LAWYER

Dooley Solicitors

Southport

Orders

All previous parenting orders be discharged.

Parental Responsibility

The father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child … born … June 1997, save that the father shall, prior to making the sole ultimate decision about any such issue:
(a)Use his best endeavours to advise the mother in writing of the decision intended to be made;
(b) Seek the mother’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:
(a) Keep the other informed of their current residential address;
(b)Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child attends or undertakes as the case may be;
(c)Immediately advise the other in the event that the child sustains any serious injury or suffers any serious illness;
(d)Authorise any person, institution or body referred to in the previous sub-paragraphs to provide to the other parent any and all such information in respect of the treatment of the child, or her activities as the case may be, as the other parent might reasonably require;
(e)Have the child’s school/s provide to the other parent a copy of the child’s report cards, together with any other written report issued by the school in respect of the child;
(f)Authorise any school or educational institution, teacher, tutor or…

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

Case: [2009] FamCA 1083
Decision Date: 17 November 2009

CaseChat Overview and Summary

This matter concerned parenting orders made by Justice Murphy in the Federal Circuit and Family Court of Australia. The dispute involved the father and mother of a child born in June 1997, with the court determining the arrangements for the child's parental responsibility, living arrangements, and communication between the parents and the child.

The court was required to determine the extent of parental responsibility each parent would have, particularly concerning "major long term issues" as defined by the *Family Law Act 1975* (Cth). Additionally, the court had to establish the child's living arrangements and the specific times the child would spend with each parent. The court also considered restrictions on communication between the mother and the child, and the facilitation of the court's orders.

Justice Murphy ordered that the father have sole parental responsibility for all major long-term issues, subject to specific requirements for consultation with the mother. The child was ordered to live with the father, with detailed provisions for the child spending time with the mother, including specific dates and alternating periods. Significant restrictions were placed on the mother's communication with the child, limited to cards or letters via Australia Post for a period of two years, with a limited exception for telephone contact on alternate Wednesdays. The court also made orders for the Independent Children's Lawyer and a family consultant to explain the orders to the child and to provide assistance to the father and child if required.

Orders

Orders of the court

All previous parenting orders be discharged.

Parental Responsibility

The father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child … born … June 1997, save that the father shall, prior to making the sole ultimate decision about any such issue:

(a) Use his best endeavours to advise the mother in writing of the decision intended to be made;

(b) Seek the mother’s written response in relation thereto;

(d) Advise the mother in writing as soon as reasonably practicable of his ultimate decision.

The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:

(a) Keep the other informed of their current residential address;

(b) Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child attends or undertakes as the case may be;

(d) Authorise any person, institution or body referred to in the previous sub-paragraphs to provide to the other parent any and all such information in respect of the treatment of the child, or her activities as the case may be, as the other parent might reasonably require;

(e) Have the child’s school/s provide to the other parent a copy of the child’s report cards, together with any other written report issued by the school in respect of the child;

(f) Authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of the child, including, but not limited to, her social, sporting and extra-curricular activities as the other parent might reasonably require.

In order to give better effect to these Orders, a copy of these orders and the Court’s reasons for judgment be approved for publication to the Principal of the child’s school and any counsellor or therapist whom she might attend at the instigation of the father.

Live with and Time

The child … born … June 1997 shall live with her father.

The child shall spend time with the mother at all such times as might be agreed in writing between the parties, but otherwise as provided for in the succeeding paragraphs of these Orders:

(a) From 10.00am until 3.00pm on Christmas Day 2009 with the mother to collect the child from the father’s residence at the commencement of that time and the father to collect the child from the mother’s residence at the conclusion of that time;

(b) Save in respect of the period ordered on Christmas Day the mother neither spend time with, nor communicate with, the child for the period from the date of these orders up to 5.00pm Friday 8 January 2010 (being a period of approximately 8 weeks from the date of these orders);

(i) 5.00pm Friday 8 January 2010 until 9.00am Monday 11 January and between those times from Friday 22 January until Monday 25 January, 2010;

(ii) from after school Friday 5 February 2010 until before school Monday 8 February, 2010 and between those times on those days in each alternate week thereafter;

(iii) For the whole of the Easter school holiday period in 2011 and each alternate year thereafter;

(iv) For one half of each gazetted school holiday period (other than the Easter school holiday period) as and from the June/July 2010 school holiday period.

(v) If not otherwise falling during a period of time specifically provided for in these orders, for two hours to be agreed between 9.00am and 5.00pm and, if a school day, from after school until 7.00pm on each of the child’s birthday; the mother’s birthday and Mother’s Day;

(vi) From 9.00am Christmas Eve 2012 until 9.00am on Christmas Day 2012 and between those times on those days each alternate year thereafter and from 9.00am Christmas Day 2013 until 9.00am Boxing Day 2013 and between those times on those days each alternate year thereafter.

Communication

Save as during periods of time otherwise provided in these orders, the mother be restrained, and an injunction issue restraining the mother, from communicating with the child other than by card or letter sent via Australia Post to the father’s address for a period of two years from the date of these orders.

The mother be restrained and an injunction issue restraining the mother from causing, encouraging or permitting any other person to communicate with the child other than by card or letter sent via Australia Post to the father’s address which accurately reflects on the envelope the name and address of the sender.

The mother be at liberty to contact the child by telephone between 7.00pm and 7.30pm on Wednesday 13 January, 2010 and between those times on that day each alternate week thereafter.

Facilitation of Orders

10.

The Independent Children’s Lawyer, in conjunction with (and after consultation with) Ms B shall arrange for Ms B to explain these orders to the child and, via methods and in a manner considered appropriate by her, the reasons why the court has made those orders.

11.

Pursuant to s 65L(1)(b), for a period of 12 months from the date of this order, a family consultant (if at all possible, Ms B), provide such assistance as the father might reasonably request, but only in circumstances where the child expresses a desire to speak to Ms B about any issue of concern to her and where the father considers that course appropriate.

IT IS FURTHER ORDERED THAT

12.

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.

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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