ALBERT & PLOWMAN (No.2) - [2018] FCCA 3579

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALBERT & PLOWMAN (No.2)

[2018] FCCA 3579

Catchwords:
FAMILY LAW – Parenting – high conflict parenting relationship – allegations of sexual abuse.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

MRR v GR [2010] HCA 4

Applicant:

MS ALBERT

Respondent:

MR PLOWMAN

File Number:

SYC 5837 of 2013

Judgment of:

Judge Altobelli

Hearing date:

26 October 2018

Date of Last Submission:

18 November 2018

Delivered at:

Wollongong

Delivered on:

14 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms Mariole

Solicitors for the Applicant:

Rebecca Bailey & Associates

Counsel for the Respondent:

Ms Cantrall

Solicitors for the Respondent:	Croydon Legal & Conveyancing
Counsel for the Independent Children's Lawyer:	Mr Anderson
Solicitors for the Independent Children's Lawyer:	Helen Volk Lawyers

ORDERS

PREVIOUS ORDERS

That, save for the Order made by consent on 26 October 2018, all previous parenting Orders be discharged.

PARENTAL RESPONSIBILITY

That, subject to the provisions of Order 3 below, the Father have sole parental responsibility for the Child [X] born 2013 (“the Child”).
That, in the exercise of his responsibility pursuant to the preceding Order, the Father:
(a)except in case of emergency, provide the Mother with not less than 42 days notice of any decision he intends or is required to make, with such information as he considers relevant to the decision to be made;
(b)take into account and give proper consideration to any views or opinions expressed by the Mother to the Father, PROVIDED THAT the Mother provides such views or opinions to him within 21 days of receiving such notice from the father pursuant to Order 3(a);
(c)inform the Mother of the decision made by him in exercise of his responsibility, within 7 days of having made such decision.

LIVING ARRANGEMENTS

That, subject to the provisions of Order 5, the Child live with the Father.

SPENDING TIME ARRANGEMENTS

That, subject to the provisions of Orders 6 to 9 below, the Child spend time with the Mother as follows:
(a)Until 21 December 2018:
(i)Each alternate week from 6:00pm Wednesday until 9:00am Friday commencing the first Wednesday after the making of these Orders;
(ii)Each alternate weekend from after preschool Friday until 9:00am or the commencement of preschool Monday commencing the second Friday after the making of these Orders;
(b)From 21 December 2018 until the commencement of school 2019:
(i)Each alternate week from 6:00pm Friday until 6:00pm the following Friday, and in lieu of agreement, commencing Friday 28 December 2018;
(c)Once the Child commences school:
(i)During NSW Public school terms:
A.Each alternate weekend from after school Friday until the commencement of school Monday, commencing the first Friday of the school term; and
B.Each alternate Wednesday from after school until the commencement of school Friday, commencing the second Wednesday after the commencement of the school term;
(ii)For one half of each of the NSW Public school term 1, 2 and 3 school holiday periods, and in lieu of agreement:
A.the first half in odd numbered years (commencing from the conclusion of…

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 ALBERT & PLOWMAN (No.2)

Details

AGLC: ALBERT & PLOWMAN (No.2) [2018] FCCA 3579
Case: [2018] FCCA 3579
Decision Date: 14 December 2018

CaseChat Overview and Summary

This case concerned parenting orders made by Judge Altobelli in the Federal Circuit and Family Court of Australia. The dispute involved a high-conflict parenting relationship and allegations of sexual abuse, necessitating detailed orders regarding parental responsibility, living arrangements, and time spent between the child and each parent.

The court was required to determine the primary caregiver for the child, the extent of each parent's parental responsibility, and the specific arrangements for the child's living arrangements, time with each parent, and communication between the parents. Additionally, the court had to address issues of personal protection, the exchange of information regarding the child's care and development, and the need for therapeutic intervention for the child and parents.

In its reasoning, the court applied principles of the Family Law Act 1975 (Cth), prioritising the best interests of the child. The orders reflect a careful balancing of the parents' roles and responsibilities, with the father granted sole parental responsibility and the child primarily living with him. The mother's time with the child was detailed, with specific provisions for holidays and special occasions, and certain conditions were imposed, including a restraint from contact with a specific individual. The court also mandated communication protocols and therapeutic interventions to manage the high-conflict dynamic and support the child's wellbeing.

The court made extensive orders, including that the father have sole parental responsibility for the child, that the child live with the father, and detailed arrangements for the child to spend time with the mother. Further orders included restraints on both parents, specific communication protocols, and requirements for therapeutic intervention for the child and parents.

Orders

Orders of the court

PREVIOUS ORDERS

That, save for the Order made by consent on 26 October 2018, all previous parenting Orders be discharged.

PARENTAL RESPONSIBILITY

That, subject to the provisions of Order 3 below, the Father have sole parental responsibility for the Child [X] born 2013 (“the Child”).

That, in the exercise of his responsibility pursuant to the preceding Order, the Father:

(a) except in case of emergency, provide the Mother with not less than 42 days notice of any decision he intends or is required to make, with such information as he considers relevant to the decision to be made;

(b) take into account and give proper consideration to any views or opinions expressed by the Mother to the Father, PROVIDED THAT the Mother provides such views or opinions to him within 21 days of receiving such notice from the father pursuant to Order 3(a);

(c) inform the Mother of the decision made by him in exercise of his responsibility, within 7 days of having made such decision.

LIVING ARRANGEMENTS

That, subject to the provisions of Order 5, the Child live with the Father.

SPENDING TIME ARRANGEMENTS

That, subject to the provisions of Orders 6 to 9 below, the Child spend time with the Mother as follows:

(a) Until 21 December 2018:

(i) Each alternate week from 6:00pm Wednesday until 9:00am Friday commencing the first Wednesday after the making of these Orders;

(ii) Each alternate weekend from after preschool Friday until 9:00am or the commencement of preschool Monday commencing the second Friday after the making of these Orders;

(b) From 21 December 2018 until the commencement of school 2019:

(i) Each alternate week from 6:00pm Friday until 6:00pm the following Friday, and in lieu of agreement, commencing Friday 28 December 2018;

(i) During NSW Public school terms:

A. Each alternate weekend from after school Friday until the commencement of school Monday, commencing the first Friday of the school term; and

B. Each alternate Wednesday from after school until the commencement of school Friday, commencing the second Wednesday after the commencement of the school term;

(ii) For one half of each of the NSW Public school term 1, 2 and 3 school holiday periods, and in lieu of agreement:

A. the first half in odd numbered years (commencing from the conclusion of school on the last day of term, and concluding at 6pm on the middle day of the holiday period); and

B. the second half in even numbered years (commencing at 6pm on the middle day of the holiday period, and concluding with the resumption of school);

(iii) For one half of the NSW Public school Christmas holiday period, and in lieu of agreement:

A. December 2019/January 2020, each alternate week from 6:00pm Friday until 6:00pm the following Friday, commencing the first Friday after the conclusion of the school term (including the last day of the term if it is a Friday);

B. December 2020/January 2021, for two blocks of 10 days, commencing at 6:00pm on the 10th and 30th day of the holiday period and concluding at 6:00pm on the 20th and 40th day of the holiday period respectively, and for one half of the remaining holiday period, commencing at 6:00pm on the middle day of the remaining holiday period and concluding with the resumption of school;

C. From December 2021 and each alternate year thereafter, for the first half of the school holiday period commencing with the conclusion of school on the last day of term until 6:00pm on the middle day of the holiday period;

D. From December 2022 and each alternate year thereafter, for the second half of the holiday period, commencing at 6:00pm on the middle day of the holiday period, and concluding at the commencement of school on the resumption of the school year;

(d) on the weekend which includes Mother’s day from the conclusion of school Friday until the commencement of school Monday;

(e) from 3:00pm Christmas Eve until 3:00pm Boxing Day (26 December) in even numbered years;

(f) From 3:00pm Boxing Day (26 December) until 3:00pm 28 December in odd numbered years;

(g) for 4 hours on the Child’s birthday and the Mother’s birthday, which shall reduce to 2 hours if the birthday falls on a school day, and in lieu of agreement, from 12:00noon to 4:00pm on a non-school day, and from after school until 2 hours after the conclusion of school, on school days.

SUSPENSION OF TIME

That the time the Child spends with the Mother shall be suspended:

(a) on the weekend which includes Father’s Day;

(b) from 3:00pm Christmas Eve until 3:00pm Boxing Day (26 December) in odd numbered years;

(d) for 4 hours on the Child’s birthday and the Father’s birthday, which shall reduce to 2 hours if the birthday falls on a school day, and in lieu of agreement, from 12:00noon to 4:00pm on a non-school day, and from after school until 2 hours after the conclusion of school, on school days.

That the time the Child spends with the Mother pursuant to Orders 5(a)(i) and 5(c)(i)(B) above shall be suspended in the event the Mother relocates her residence outside the Region 1 Shire.

PERSONAL PROTECTION ORDERS

That the Mother be restrained by injunction from permitting the Child to come into contact with the child [A] born 2002 (“[A]”) or stay overnight in any home in which [A] resides, whilst [A] is present.

COMMUNICATION

That the Child communicate with the Mother, by telephone or such other agreed available communication such as Facetime or Skype, and in lieu of agreement, between 6:00pm and 7:00pm each Wednesday and Saturday when he is in the Father’s care, and in this respect the Mother shall contact the Father on his last notified mobile telephone number.

10.

That the Child communicate with the Father, by telephone or such other agreed available communication such as Facetime or Skype, and in lieu of agreement, between 6:00pm and 7:00pm each Thursday and Saturday when he is in the Mother’s care, and in this respect the Father shall contact the Mother on her last notified mobile telephone number.

11.

That each parent shall facilitate the Child communicating with the other parent by telephone, at any reasonable time he expresses a wish to do so.

12.

That the parents communicate with one another as follows:

(a) By telephone in the case of emergency;

(b) By text message where the information to be relayed or sought requires notification or a response within 48 hours;

13.

To facilitate the effective communication between the parents:

(a) Each parent shall communicate with the other parent in a manner that is polite, to the point, and limited to the issue pertaining to [X];

(b) Where a response is requested by either parent, the responding parent shall respond:

(i) Within the time requested in the communication; or

(ii) Where no response time is requested, within 7 days.

CHANGEOVER

14.

For the purposes of facilitating the Child’s time with each parent in accordance with Orders 5 and 6 above, changeover is to occur as follows;

(a) If the Child’s time with the Mother commences or concludes at preschool or school, the Mother or her nominee shall collect the Child from preschool or school at the commencement of such time and return the Child to preschool or school at the conclusion of time;

(b) If the Child’s time with the Mother does not commence or conclude at preschool or school, then the parents or their nominee shall facilitate changeover at McDonalds Family Restaurant at Suburb C.

RESTRAINTS

15.

That each parent be restrained from denigrating the other parent or any member of the other parent’s family or household in the presence or hearing of the Child, and shall forthwith remove the Child from the presence of any other person who does so.

AUTHORITIES AND INFORMATION

16.

Subject to the provisions of Order 17, this Order operates as the authority of the Father, for the Mother to obtain directly from the service provider, such information as she may seek in relation to the care, education or development of the Child from any health, medical, educational or extracurricular practitioner providing care or services to [X] (“service provider”).

17.

The authority pursuant to Order 16 is automatically revoked in the event that the communication from the Mother to the service provider is hostile, inflammatory, critical, or derogatory of the service or the Father, or in any way undermines the care or service provided to [X] by the service provider, in which case, the mother shall obtain such information from the Father.

18.

For the purpose of facilitating Order 16, that the Father inform the Mother, within 48 hours of the information becoming available, the identity and contact details for any service provider who provides services to [X].

19.

In the event that the authority pursuant to Order 16 is revoked, the Father shall provide to the Mother, such information as she seeks, within 7 days of a request for same.

20.

That each parent keep the other informed of their address and contact telephone number and email address, and inform the other of any change to such details within 24 hours of the change occurring.

21.

That each parent forthwith notify the other of any medical emergency, serious medical problem, hospitalisation or accident in relation to the Child which occurs whilst the Child is in their care, including details of the relevant hospital or treating practitioner, and any medication provided to or prescribed for the Child.

SPECIFIC ISSUES

22.

That, the Child be enrolled to attend, and attend School M for his primary education.

23.

That each parent be restrained from enrolling [X] to participate in any extra-curricular activity which occurs during the time the Child spends with the other parent, without first obtaining the consent of the other parent in writing (which may include by text message or email).

24.

That, in the event [X] is enrolled in an extra-curricular activity pursuant to the preceding Order, each parent shall facilitate [X]’s attendance at such extra-curricular activity.

25.

Nothing in Order 23 shall prevent either parent from enrolling [X] in an activity which occurs only during the time [X] is in their respective care.

26.

PROVIDED that they conduct themselves with courtesy and respect toward the other parent, each parent shall be at liberty to attend all sporting, educational, extra-curricular and social activities in which [X] is engaged, to which parents are ordinarily invited, notwithstanding that such attendance may occur during a time when the Child is in the care of the other parent.

27.

Unless otherwise specified, the school holiday periods shall be deemed:

(a) to commence at the conclusion of school on the last day of the school term; and

(b) To conclude at the resumption of school on the first day that children are required to attend school in the new term.

THERAPEUTIC INTERVENTION

28.

That both parents do all things necessary and sign all necessary documents to continue to facilitate [X]’s attendance at [Psychology Clinic], until [X] attains the age of 7 years, or for such period as is recommended by [Psychology Clinic], and themselves participate in such manner as requested by [Psychology Clinic], with each parent to be responsible for meeting the cost of any therapeutic sessions they are to attend, and, with the parties to share equally the cost of the sessions to be attended by [X] where such sessions are not covered by Medicare.

29.

That each parent facilitate [X]’s attendance upon such other therapeutic service provider recommended by [Psychology Clinic], during the time [X] is in their respective care, for such period and duration as is recommended by [Psychology Clinic], or the recommended therapeutic service provider.

30.

Each parent shall use their best endeavours to utilise the strategies recommended by [Psychology Clinic] or such other recommended therapeutic service provider for managing [X]’s behaviour, to achieve consistency in caregiving and to promote his wellbeing.

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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