FAMILY COURT OF AUSTRALIA
| ALMOND & HEIDKE | [2017 ] FamCA 1099 |
| FAMILY LAW – CHILDREN – Interim Proceedings – Where there is one child of the parties’ relationship – Where the child is suffering from kidney failure – Where there are concerns surrounding with the mother’s mental health – Where the father made an application to vary the current interim orders so that he be granted parental responsibility for the child’s medical and educational needs and that the mother spend limited supervised time with the child when he is hospitalised and to restrain the mother from discussing with the child a kidney transplant and respective donors – Consideration of section 60CC factors – Unacceptable risk – Where the presumption of equal shared parental responsibility should not apply – Court finds that family therapy should be suspended – Orders made for Dr P to write an updated single expert report – Orders made restraining the mother from discussing with the child his kidney transplant and possible kidney donors unless in the presence of and under the guidance of the child’s renal specialist – Orders made varying current interim parenting orders. |
| Family Law Act 1975 (Cth) ss 43, 60B, 60CA, 60CC, 61DA, 65DAA |
| B and B (1993) FLC 92-357 Salah & Salah (2016) FLC 93‑713 Stott & Holger and Anor [2017] FamCAFC 152 |
| APPLICANT: | Mr Almond |
| RESPONDENT: | Ms Heidke |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | SYC | 6427 | of | 2009 |
| DATE DELIVERED: | 22 December 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 8 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Johnston |
| SOLICITOR FOR THE APPLICANT: | Mark Griffiths & Bova Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Santone Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Grooby of Legal Aid New South Wales |
Orders
THE COURT ORDERS THAT:
To avoid doubt, except as varied below, the Orders of Sexton J dated 17 August 2016 remain in full force and effect.
Paragraph 7 of the Orders of Sexton J dated 17 August 2016 is varied to read as follows:
(a) X spend time with the Mother during school hours, up to twice per week, as arranged between the Mother and the school, on the condition that the father agrees to the spend time arrangements involving the child’s school.
The mother spend time with the child when he is hospitalised for 4 hours per fortnight, on…
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- AGLC
- Almond and Heidke [2017] FamCA 1099
- Case
- [2017] FamCA 1099
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether to vary the existing orders regarding the child's time with the mother, specifically concerning school visits and hospitalisation, and whether to impose restrictions on the mother's discussions with the child about his kidney transplant and potential donors. The court also had to consider the impact of these proposed variations on the overall parenting arrangements previously established.
McClelland J determined that the existing orders should largely remain in force, with specific variations to address the concerns raised. The court varied paragraph 7 of the original orders to allow the child to spend time with the mother during school hours, up to twice per week, subject to arrangements made with the school and the father's agreement. Further, the mother was granted four hours of contact per fortnight with the child when hospitalised, specifically on a Saturday from 10:00 am to 2:00 pm, with a responsible adult present, to be agreed upon by the parties or, failing agreement, the father. Crucially, the mother was restrained from discussing the child's kidney transplant and potential donors unless in the presence and under the guidance of the child's renal specialist. Additionally, an earlier order from 25 October 2016 and associated consent orders were suspended until further order.
Orders
Orders of the court
THE COURT ORDERS THAT:
1.
To avoid doubt, except as varied below, the Orders of Sexton J dated 17 August 2016 remain in full force and effect.
2.
Paragraph 7 of the Orders of Sexton J dated 17 August 2016 is varied to read as follows:
(a) X spend time with the Mother during school hours, up to twice per week, as arranged between the Mother and the school, on the condition that the father agrees to the spend time arrangements involving the child’s school.
3.
The mother spend time with the child when he is hospitalised for 4 hours per fortnight, on a Saturday from 10:00am to 2:00pm with a responsible adult agreed between the parties to be present and, in default of agreement, that person be Mr Heidke.
4.
The mother is hereby restrained from discussing with the child his kidney transplant and possible kidney donors unless done so in the presence of and under the guidance of the child's renal specialist.
5.
Order 1 of the orders made by Sexton J on 25 October 2016 and the consent orders attached to that order are suspended until further order of the Court.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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