Aiden and Grant - [2016] FamCA 861

FAMILY COURT OF AUSTRALIA

AIDEN & GRANT

[2016] FamCA 861

FAMILY LAW – CHILDREN – Interim parenting — mother’s application for review of Senior Registrar’s decision dismissed as to part and otherwise withdrawn — multiple proceedings within a very short space of time — vexatious nature of proceedings raised by the Court of its own volition — current proceedings found to be vexatious — costs — impecuniosity not a defence — time to pay — case management.

APPLICANT:

Ms Aiden

RESPONDENT:

Mr Grant

INDEPENDENT CHILDREN’S LAWYER:

Ms Kourtis

FILE NUMBER:

MLC

5094

2008

DATE DELIVERED:

6 October 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

6 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carter

SOLICITOR FOR THE APPLICANT:

Carew Counsel Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Marchetti

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hannan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park Solicitors

Orders

BY CONSENT IT IS ORDERED THAT:

1.Paragraph 5(a)(ii) of the Order made by Senior Registrar FitzGibbon on 4 August 2016 be varied so that the telephone call is to be initiated by the mother calling the father’s mobile telephone number … and the father to ensure that the child is available to speak to the mother, the telephone service is turned on, within range and the handset sufficiently charged.
2.The parents do all acts and things necessary for the child V born … 2006 (“the child” or “V”) to attend upon Dr T, psychologist, as may be accommodated and recommended by Dr T for the purpose of therapeutic counselling (“the counselling”).
3.For the purpose of the counselling:-
a)      Each of the parents forthwith provide to Dr T written authority to undertake further counselling for the benefit of the child providing that compliance by a parent with this Order is not a pre-condition to the counselling;
b)      The independent children’s lawyer provide to Dr T a copy of the Department of Health and Human Services reports dated 4 October 2016 and 29 July 2016 and the reasons for decision of the Honourable Justice Cronin delivered on 22 March 2016;
c)      Each of the parents engage in the counselling process as directed by Dr T; and
d)      Until further order, the father pay the out of pocket balance in relation to the child’s face to face consultations with Dr T (currently $120 per session).

IT IS ORDERED THAT:

4.The mother have leave to make an oral application for an alteration of interim spend time arrangements so that her sister supervise time between herself and the child and that oral application be and is hereby dismissed.
5.The mother have leave to withdraw her application to review the decision of Senior Registrar FitzGibbon made on 4 August 2016.
6.For the avoidance of doubt, all other orders in relation to electronic communication and the Order made on 4 August 2016 remain in full force and effect.
7.For the avoidance of doubt Dr T, psychologist, may at her sole initiative…

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 Aiden and Grant

Details

AGLC: Aiden and Grant [2016] FamCA 861
Case: [2016] FamCA 861
Decision Date: 6 October 2016

CaseChat Overview and Summary

In the matter of Aiden and Grant, Bennett J considered orders relating to the welfare and communication arrangements for a child, V. The dispute involved the parents' arrangements for communication with V and V's therapeutic counselling.

The court was required to determine several legal issues, including the variation of existing communication orders, the facilitation of therapeutic counselling for V, the provision of relevant documents to the counsellor, parental engagement in the counselling process, the payment of counselling costs, and the mother's application for altered supervised time arrangements. The court also considered whether the proceedings were vexatious and the mother's contribution to the costs of the independent children's lawyer and the father.

Bennett J's reasoning led to a series of consent orders and declarations. The court varied the order regarding telephone communication, stipulating that the mother would initiate calls to the father's mobile, and the father would ensure V's availability. Orders were made to facilitate V's attendance and engagement in therapeutic counselling with Dr T, including the provision of authority and relevant reports to the psychologist, parental participation, and the father's payment of out-of-pocket expenses for consultations. The mother's oral application for altered supervised time was dismissed, and her application to review a prior decision was permitted to be withdrawn. Crucially, the court declared the proceedings to be vexatious under section 102Q of the *Family Law Act 1975*.

The court ordered the mother to contribute $900 each to the costs of the independent children's lawyer and the father, totalling $1800, to be paid within 60 days. The orders also included a fact sheet detailing contravention consequences and assistance for compliance. The court noted the mother's refusal to comply with a prior order regarding particulars and scheduled the matter for a further hearing.

Orders

Orders of the court

BY CONSENT IT IS ORDERED THAT:

1. Paragraph 5(a)(ii) of the Order made by Senior Registrar FitzGibbon on 4 August 2016 be varied so that the telephone call is to be initiated by the mother calling the father’s mobile telephone number … and the father to ensure that the child is available to speak to the mother, the telephone service is turned on, within range and the handset sufficiently charged.

2. The parents do all acts and things necessary for the child V born … 2006 (“the child” or “V”) to attend upon Dr T, psychologist, as may be accommodated and recommended by Dr T for the purpose of therapeutic counselling (“the counselling”).

3. For the purpose of the counselling:-

a) Each of the parents forthwith provide to Dr T written authority to undertake further counselling for the benefit of the child providing that compliance by a parent with this Order is not a pre-condition to the counselling;

b) The independent children’s lawyer provide to Dr T a copy of the Department of Health and Human Services reports dated 4 October 2016 and 29 July 2016 and the reasons for decision of the Honourable Justice Cronin delivered on 22 March 2016;

c) Each of the parents engage in the counselling process as directed by Dr T; and

d) Until further order, the father pay the out of pocket balance in relation to the child’s face to face consultations with Dr T (currently $120 per session).

IT IS ORDERED THAT:

4. The mother have leave to make an oral application for an alteration of interim spend time arrangements so that her sister supervise time between herself and the child and that oral application be and is hereby dismissed.

5. The mother have leave to withdraw her application to review the decision of Senior Registrar FitzGibbon made on 4 August 2016.

6. For the avoidance of doubt, all other orders in relation to electronic communication and the Order made on 4 August 2016 remain in full force and effect.

7. For the avoidance of doubt Dr T, psychologist, may at her sole initiative contact Mr P, psychologist, to discuss his previous treatment and diagnosis of the child subject to Dr T first having:-

a) read paragraphs 70 to 77 of the reasons for decision dated 22 March 2016; and

b) read the said reports from the Department of Health and Human Services including references to the involvement of child protection with Mr P on 11 August 2016 and 6 September 2016 as detailed in the Department of Health and Human Services report of 4 October 2016.

IT IS DECLARED:

8. That these proceedings are vexatious proceedings within the definition of section 102Q of the Family Law Act 1975.

IT IS FURTHER ORDERED THAT:

9. The wife make a contribution to the costs of the independent children’s lawyer and the father in the sum of $900 each, being a total of $1800, such costs to be paid within 60 days.

10. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS DIRECTED:

11. That the minute of consent orders as amended be marked Exhibit “A” and remain on the Court file.

12. My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

AND THE COURT NOTES

A. That the mother refuses to comply with paragraph 11(a) of the Order made on 4 August 2016 in the face of requests by the independent children’s lawyer for the particulars pertaining to her as required by the said order.

B. That this matter is next listed for a First Day Hearing before the Honourable Justice Macmillan on 12 October 2016.

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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