Almond and Heidke

Case [2017] FamCA 1099


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
Banks & Banks [2015] FamCAFC 36
Bennett and Bennett (1991) FLC 92-191
Cowling v Cowling (1998) FLC 92-801
Finton and Kimble [2017] FCWA 106
Johnson and Page (2007) FLC 93-344
Keats & Keats [2016] FamCAFC 156
M v M (1988) 166 CLR 69
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
McCall & Clark  (2009) FLC 93-405
Mazorski & Albright (2007) 37 Fam LR 518
N and S and the Separate Representative (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Potter and Potter (2007) FLC 93-326

SS v AH [2010] FamCAFC 13

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:

  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…

Continue reading Almond and Heidke

Sign in free to access the full text

Details
AGLC
Almond and Heidke [2017] FamCA 1099
Case
[2017] FamCA 1099
Decision Date

CaseChat Overview and Summary

This matter came before McClelland J concerning an application to vary existing orders made by Sexton J on 17 August 2016 and 25 October 2016, which dealt with parenting arrangements for a child named X. The dispute centred on the specific terms of contact between the child and the mother, particularly in relation to school attendance and hospitalisation, as well as restrictions on discussions about the child's medical condition.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.