Yardley and Balden - [2015] FCCA 184

FEDERAL CIRCUIT COURT OF AUSTRALIA

YARDLEY & BALDEN

[2015] FCCA 184

Catchwords:
FAMILY LAW – Parenting – dispute as to whether three year old child is to spend time with the father – Held that the father presented an unacceptable risk to the child due to family violence, inability to care for child, denigration of mother, his relationship with his current partner where they are in a volatile relationship and partner suffers from mental health issues, where father suffers from narcissistic traits – Held in best interests of the child for an order whereby father does not spend time with or communicate with the child.

Legislation:

Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 64B

Johnson & Johnson (2000) 201 CLR 488
Re F Litigants In Person Guidelines [2001] FamCA 348
Hardie & Capris [2010] FamCA 1046
MRR v GR (2010) 263 ALR 368
Moose & Moose [2008] FamCACF 108
Mazorski & Albright (2008) 37 Fam LR 518
Briginshaw v. Briginshaw (1938) 60 CLR 336
Johnson & Page [2007] FamCA 1235
R & C [1993] FamCA 62

Applicant:

MR YARDLEY

Respondent:

MS BALDEN

File Number:

BRC 2761 of 2012

Judgment of:

Judge L. Turner

Hearing dates:

20 January 2014, 21 January 2014, 22 May 2014 and 23 May 2014

Date of Last Submission:

25 July 2014

Delivered at:

Brisbane

Delivered on:

3 February 2015

REPRESENTATION

The Applicant appearing in person on his own behalf

Solicitors for the Respondent:

Salvos Legal Humanitarian

Counsel for the Independent Children’s Lawyer:

Ms Downes

Solicitor for the Independent Children’s Lawyer:

SBA Family Lawyers

ORDERS

That all previous parenting orders and parenting plans are hereby discharged.
That the child X born (omitted) 2011 live with the mother.
That the mother have sole parental responsibility for the child.
That the mother is to inform the father promptly by email as to any serious health issue or injury suffered by the child.
That the father not be permitted to spend time with or communicate with the child.
That every six months the mother send to the father by email a photograph of the child together with an update as to the child’s milestones.
That the parties notify each other within 7 days as to any changes in their email addresses.
That each of parties and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2011 from the Commonwealth of Australia.
X born (omitted) 2011 be and is/are hereby restrained from leaving the Commonwealth of Australia.
That it is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name(s) on the Watch List for a period of two (2) years.
That upon expiration of the period referred to in Order 10 and subject to any further…

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 Yardley and Balden

Details

AGLC: Yardley and Balden [2015] FCCA 184
Case: [2015] FCCA 184
Decision Date: 3 February 2015

CaseChat Overview and Summary

In a proceeding before Judge L. Turner, the court considered orders concerning the child X, born in 2011, and the parental responsibilities of the mother and father. The dispute centred on the living arrangements, parental responsibility, and contact arrangements for the child, as well as injunctive relief sought by the mother against the father.

The court was required to determine the primary caregiver for the child, the allocation of parental responsibility, and the extent of the father's future contact with the child. Additionally, the court had to consider whether to grant injunctions restraining the father from contacting the mother and from approaching specified locations, and to make orders preventing the child from leaving the Commonwealth of Australia.

The court ordered that all previous parenting orders and plans be discharged. It was ordered that the child X live with the mother and that the mother have sole parental responsibility. The father was prohibited from spending time with or communicating with the child, though the mother was to inform him of serious health issues and provide a photograph and milestone update every six months. Crucially, the court issued orders restraining both parties and their agents from removing the child from the Commonwealth of Australia, and the child was also restrained from leaving. The Australian Federal Police were directed to place the child's name on the Watch List at all points of arrival and departure for two years. Furthermore, pursuant to section 114 of the *Family Law Act 1975*, the father was restrained from contacting the mother and from coming within 100 metres of the mother's home, place of employment, the child's kindergarten, school, or any after-school or vacation care facility. The court also noted that any application to extend the Watch List period would require a formal application and supporting affidavit.

Orders

Orders of the court

That all previous parenting orders and parenting plans are hereby discharged.

That the child X born (omitted) 2011 live with the mother.

That the mother have sole parental responsibility for the child.

That the mother is to inform the father promptly by email as to any serious health issue or injury suffered by the child.

That the father not be permitted to spend time with or communicate with the child.

That every six months the mother send to the father by email a photograph of the child together with an update as to the child’s milestones.

That the parties notify each other within 7 days as to any changes in their email addresses.

That each of parties and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2011 from the Commonwealth of Australia.

X born (omitted) 2011 be and is/are hereby restrained from leaving the Commonwealth of Australia.

10.

That it is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name(s) on the Watch List for a period of two (2) years.

11.

That upon expiration of the period referred to in Order 10 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.

12.

That pursuant to section 114 Family Law Act 1975 the father:-

(a) Be restrained and an injunction issue preventing the father from contacting the mother or requesting another person to contact the mother, whether by letter, email, text or telephone call.

(b) Be restrained and an injunction issue preventing the father from coming within 100 metres of:-

(i) The mother’s home.

(ii) The mother’s place of employment.

(iii) The child’s kindergarten.

(iv) The child’s school.

(v) Any after school or vacation care facility used by the child.

THE COURT NOTES:

A. That if after the expiration of the period set out in Order 10 above any parent seeks that the child or children’s name(s) remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.

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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