ABERCROMBIE & DAMON (No.2) - [2020] FCCA 910

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABERCROMBIE & DAMON (No.2)

[2020] FCCA 910

Catchwords:
FAMILY LAW – Parenting – interim dispute – following completion of psychiatric report and child inclusive conference – dispute over spend time with father – interim parenting orders in children’s best interests.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CC, 61DA, 60CC

Cases cited:

Abercrombie & Damon (2019) FCCA 543
Eyton v Eyton [2013] FamCA 657
Goode & Goode [2006] FamCAFC 1346
MRR v GR(2010) 240 CLR 461
Marvel &Marvel [2010] FamCAFC 101
Deiter &Deiter [2011] FamCAFC 82
Banks & Banks (2015) FLC 93-637
Ealey v Speelman [2015] FamCAFC 104

Applicant:

MS ABERCROMBIE

Respondent:

MR DAMON

File Number:

DGC 3440 of 2011

Judgment of:

Judge O'Sullivan

Hearing date:

2 April 2020

Date of Last Submission:

2 April 2020

Delivered at:

By Telephone

Delivered on:

2 April 2020

REPRESENTATION

Counsel for the Applicant:

Ms Oldham

Solicitors for the Applicant:

Cathleen Corridon & Associates

Counsel for the Applicant:

Self-Represented

Solicitors for the Respondent:

Self-Represented

Counsel for the Independent Children's Lawyer:

Mr Bult

Solicitors for the Independent Children's Lawyer:

Bowlen Dunstan & Associates Pty Ltd

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

Order 5 and 6 of the substantive 27 November 2019 orders remain in full force and effect.
Orders 7 and 8 of the 27 November 2019 Orders are hereby discharged.
The children X born in 2007 (“X”) and Y born in 2011 (“Y”) (collectively “the children”) spend time and communicate with the Father as follows:-
(a)on Saturday 11 April 2020, between 10.00am and 12.00pm, as facilitated by the ‘Family Contact Service’ (Ms CC), at the cost of the Father, with changeover determined by Ms CC;
(b)on Saturday 18 April 2020, between 10.00am and 12.00pm, as facilitated by the ‘Family Contact Service’ (Ms CC), at the cost of the Father, with changeover determined by Ms CC.
(c)on Saturday 25 April 2020, between 10.00am and 1.00pm, at a public place, as agreed between the Mother and Father be text message and/or email no less than 72 hours prior to this period of time and failing agreement, at Suburb F Park;
(d)on Saturday 2 May 2020, between 10.00am and 1.00pm, at a public place, as agreed between the Mother and Father by text message and/or email no less than 72 hours prior to this period of time and failing agreement, at Suburb F Park;
(e)on Saturday 9 May 2020, between 10.00am and 2.00pm;
(f)on Saturday 16 May 2020, between 10.00am and 2.00pm;
(g)on Saturday 23 May 2020, between 10.00am and 3.00pm;
(h)on Saturday 30 May 2020, between 10.00am and 3.00pm;
(i)on Saturday 6 June 2020, between 10.00am and 4.00pm;
(j)on Saturday 13 June 2020, between 10.00am and 4.00pm;
(k)on Saturday, 20 June 2020, between 10.00am and 5.00pm;
(l)on Saturday 27 June 2020, between 10.00am and 5.00pm;
(m)on Saturday 4 July 2020, between 10.00am and 6.00pm;
(n)on Saturday 11 July 2020, between 10.00am and 6.00pm;
(o)from 10.00am on Saturday 18 July 2020, to 10.00am on Sunday…

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 ABERCROMBIE & DAMON (No.2)

Details

AGLC: ABERCROMBIE & DAMON (No.2) [2020] FCCA 910
Case: [2020] FCCA 910
Decision Date: 2 April 2020

CaseChat Overview and Summary

In this interim parenting dispute before Judge O'Sullivan, the court considered the arrangements for children X and Y following a psychiatric report and a child inclusive conference. The primary dispute concerned the extent of time the children would spend with their father.

The court was required to determine appropriate interim parenting orders that would serve the best interests of the children. This involved assessing the recommendations from the child inclusive conference and considering the need for supervised contact, communication protocols, and the involvement of various support services.

The court's reasoning was guided by the principle of acting in the children's best interests, as informed by the child inclusive conference memorandum. Interim orders were made to facilitate supervised contact between the children and their father, with specific dates and times outlined. The court also made orders regarding communication between the parents and the children, the involvement of a family contact service, and the costs associated with these arrangements. Further orders addressed the need for psychological counselling for the mother and children, information gathering regarding the child Y's diabetes, and attendance at parenting programs. Injunctions were also imposed to prevent discussion of the proceedings and denigration of each other in the children's presence, and to restrict contact between the mother's partner and the father. The court also directed the preparation of a Family Report by a Family Consultant to assist in future determinations.

Orders

Orders of the court

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

Order 5 and 6 of the substantive 27 November 2019 orders remain in full force and effect.

Orders 7 and 8 of the 27 November 2019 Orders are hereby discharged.

The children X born in 2007 (“X”) and Y born in 2011 (“Y”) (collectively “the children”) spend time and communicate with the Father as follows:-

(a) on Saturday 11 April 2020, between 10.00am and 12.00pm, as facilitated by the ‘Family Contact Service’ (Ms CC), at the cost of the Father, with changeover determined by Ms CC;

(b) on Saturday 18 April 2020, between 10.00am and 12.00pm, as facilitated by the ‘Family Contact Service’ (Ms CC), at the cost of the Father, with changeover determined by Ms CC.

(c) on Saturday 25 April 2020, between 10.00am and 1.00pm, at a public place, as agreed between the Mother and Father be text message and/or email no less than 72 hours prior to this period of time and failing agreement, at Suburb F Park;

(d) on Saturday 2 May 2020, between 10.00am and 1.00pm, at a public place, as agreed between the Mother and Father by text message and/or email no less than 72 hours prior to this period of time and failing agreement, at Suburb F Park;

(e) on Saturday 9 May 2020, between 10.00am and 2.00pm;

(f) on Saturday 16 May 2020, between 10.00am and 2.00pm;

(g) on Saturday 23 May 2020, between 10.00am and 3.00pm;

(h) on Saturday 30 May 2020, between 10.00am and 3.00pm;

(i) on Saturday 6 June 2020, between 10.00am and 4.00pm;

(j) on Saturday 13 June 2020, between 10.00am and 4.00pm;

(k) on Saturday, 20 June 2020, between 10.00am and 5.00pm;

(l) on Saturday 27 June 2020, between 10.00am and 5.00pm;

(m) on Saturday 4 July 2020, between 10.00am and 6.00pm;

(n) on Saturday 11 July 2020, between 10.00am and 6.00pm;

(o) from 10.00am on Saturday 18 July 2020, to 10.00am on Sunday 19 July 2020;

(p) from 10.00am on Saturday 25 July 2020, to 10.00am on Sunday 26 July 2020;

(q) from 10.00am on Saturday 1 August 2020, to 12.00pm on Sunday 2 August 2020;

(r) from 10.00am on Saturday 8 August 2020, to 12.00pm on Sunday 9 August 2020;

(s) from 10.00am on Saturday 15 August 2020, to 2.00pm on Sunday 16 August 2020;

(t) from 10.00am on Saturday 22 August 2020, to 2.00pm on Sunday 23 August 2020;

(u) from 10.00am on Saturday 29 August 2020, to 4.00pm on Sunday 30 August 2020;

(v) from 10.00am on Saturday 5 September 2020, to 4.00pm on Sunday 6 September 2020;

(w) from 10.00am on Saturday 12 September 2020, to 6.00pm on Sunday 13 September 2020;

(x) from 10.00am on Saturday 19 September 2020, to 6.00pm on Sunday 20 September 2020;

(y) from 3.30 pm (or the conclusion of school) on Friday 25 September 2020, to 6.00pm on Sunday 27 September 2020 and each alternate weekend thereafter, until further Order, or the Final Hearing date detailed in Order 1 herein;

(z) by telephone, skype or Facetime communication, on Wednesday in each week, between 6.00pm and 6.30pm, with the Father to place the call on a mobile telephone number nominated by the Mother, with the Solicitors for the Mother to provide the Father and the Independent Children’s Lawyer with a mobile telephone number within 24 hours for this purpose and the Mother to facilitate the call, uninterrupted; and

(aa) at such other and further times as may be agreed between the Father and Mother, by the exchange of text messages and/or email.

The Father shall be responsible for the costs of the Family Contact Service detailed in Order 3(a) and 3(b) herein, detailed in Notation C herein.

Within 72 hours, the Mother and Father do all things necessary to make application and enrol in the ‘Family Contact Service’, in relation to the two supervised time periods detailed in order 3(a) and (b) herein.

Following the two periods of supervised time detailed in order 3(a) and (b) herein, the Father do all things necessary to obtain a Supervised Time Progress Report from the ‘Family Contact Service’ at his cost and provide a copy to the other parties.

Changeover for all time spent between the children and the Father detailed in order 3(c) – (y) and (aa) detailed above shall take place in the foyer of Suburb F Police Station, DD Street, Suburb F, at the commencement and conclusion of all time spent, unless otherwise agreed between the Mother and Father in writing, by the exchange of text messages and/ or emails.

Within 14 days, the Mother do acts and things necessary to attend upon her general practitioner, to obtain a referral pursuant to a mental health care plan, to a psychologist, for ongoing psychological counselling, aimed at increasing her understanding of the effect of the children of them being involved in an ongoing conflict between their parents and the inevitable involvement of the children in this conflict, at her cost (if any).

Within 14 days, the Father do acts and things necessary to make an appointment to attend upon the child Y’s diabetes specialist/s, to obtain information about her diabetes type one medical condition, including any and all medication required to be taken by her and any further follow-up care required in the appropriate treatment of this medical condition.

10.

Within 14 days Within 14 days, the Mother and Father do all things necessary to enrol in a 'Parenting After Separation' one day intensive Parenting Program at H Centre, Suburb J or H Centre, Suburb EE, at their respective cost, if any and upon commencement of the program follow all of directions of the program, including attending any required appointments and upon completion of this program. Upon completion of this program they shall provide the other parties with a certificate of completion of this program.

11.

The Mother do all things necessary to facilitate the children attending upon their General Practitioner to obtain a referral pursuant to a Mental Health Care Plan, to a child psychologist, for ongoing psychological counselling, aimed at assisting the children with any ongoing anxiety they may be experiencing, at the Mother’s cost, if any.

12.

Within 14 days, the Mother do acts and things necessary to authorise the father to obtain copies of school reports and related school documentation in relation to the attendance of the children at school, normally provided to parents and otherwise authorise the father to attend all normal school and extracurricular activities normally attended by parents and parent teacher interviews and this order shall serve as authority for same.

13.

The Mother and Father are hereby restrained by Injunction from:-

(a) discussing any aspect of this Court Proceeding, or the conflict between the mother and father, within the hearing or presence of the children X and/ or Y, either personally or through the servants or agents;

(b) denigrating each other, within the hearing or presence of the children X and/or Y, either personally or through the servants or agents;

(c) inappropriately disciplining or chastising the children X and/or Y, either personally or through the servants or arrangements.

14.

The Mother is hereby restrained by Injunction from allowing her partner Mr B to come into contact with the Father.

15.

The Mother and Father shall advise each other of any serious injury or serious medical condition suffered or required by the children X and/or Y, whilst the children are in their respective care and this order shall serve as an authority for the Mother and Father to speak to any medical specialist or practitioner treating the children X and/or Y and this order shall serve as authority for same.

16.

Within 14 days, the Mother and Father to all things necessary to download the parenting communication "2 Houses Apart", at their individual cost, if any and thereafter utilise this parenting communication application, to communicate in relation to only issues concerning the care, welfare and development of the children X and/or Y.

THE COURT ORDERS THAT:

17.

Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the children, X born in 2007 and Y born in 2011 attend upon a Family Consultant AND IT IS REQUESTED that Ms U be appointed for the purposes of the preparation of a Family Report to be given to the Court 7 December 2020,and that:

(a) the Family Report address the matters relevant to ss60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the children.

(b) the parties comply with all reasonable directions of the Family Consultant.

(d) within 7 days of being notified of the family consultant, the solicitor for each of the parties (or, if unrepresented, then the party themselves) deliver to the family consultant copies of the following documents:

(e) all relevant applications, responses and relevant affidavits filed by or on behalf of his/her client in the within proceedings; AND

(f) any intervention or restraining orders currently in force.

18.

Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

19.

Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

(a) a Children’s Court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference.

20.

Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

21.

The matter be adjourned for a mention on 4 September 2020 commencing at 10:00 am at the Federal Circuit Court of Australia at Dandenong; and then

22.

The matter be adjourned to 8 February 2021 at commencing at 10:00 am for final hearing (with an estimated hearing time of 2 days) at the Federal Circuit Court of Australia at Dandenong.

23.

The applicant do file and serve one trial affidavit (only) from each witness that they intend to rely on in the proceedings not later than 28 days prior to the trial.

24.

The respondent do file and serve one trial affidavit (only) from each witness that they intend to rely on in the proceedings not later than 14 days prior to the trial.

25.

The Independent Children’s Lawyer do file and serve one trial affidavit (only) from each witness that they intend to rely on in the proceedings not later than 7 days prior to the trial.

26.

All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date setting out the following:

(a) a list of the material relied upon;

(b) a brief chronology listing significant events;

(c) a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (sec 60cc factors);

(d) a list of other contentions relevant to the decision;

(e) whether the presumption of equal shared parental responsibility applies (sec 61da), and if not the contentions relied upon;

(f) a list of the considerations relevant to considerations of equal and substantial parenting time (sec 65daa);

(g) a list of other relevant considerations (including the relevant section number, eg secs 60cg, 61f, 65dab, 65dac, etc); and

(h) the actual orders sought.

27.

No further documents shall be filed in these proceedings, save for as set out above, without leave of the Court.

28.

The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

29.

Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the Mother and the Independent Children’s Lawyer to employ an Advocate to appear at Court today.

30.

Pursuant to Sections 65DA and 62B of the Family Law Act 1975 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 the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

AND THE COURT NOTES THAT:

(A) The orders detailed herein are generally in accordance with the recommendations made by Family Consultant Ms P in her 13 March 2020 Child Inclusive Conference Memorandum to Court.

(B) The Independent Children’s Lawyer met with the children X and Y on 11 February 2020 and intends on meeting with him again prior to the Final Hearing date detailed in order 22 herein and the Mother and Father confirm today that they both consent to this further meeting taking place.

(C) The Independent Children’s Lawyer has spoken to Ms CC at the ‘Family Contact Service’ on 27 March 2020, who can facilitate supervised time detailed in order 3(a) and 3(b) herein with the following costs, payable by the Father:-

(a) in intake fee of $250.00;

(b) an hourly fee of $110.00 on a Saturday with a 2 hour minimum; and

(D) The Independent Children’s Lawyer spoke with ‘H Centre, Suburb J' on 27 March 2020, who indicated that they have an intensive one day program available in Suburb EE in May 2020 and in Suburb J in August 2020 and there is an ability for the Mother and Father to attend separately.

(E) At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

(F) Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

(G) Paragraph 7(a) and (b) of the ‘Stay at Home Directions’ dated 31 march 2020 issued by the Deputy Chief Health Officer under s.200 of the Public Health and Wellbeing Act 2008 (Vic).

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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