Andrews and Killarney - [2009] FamCA 746

FAMILY COURT OF AUSTRALIA

ANDREWS & KILLARNEY

[2009] FamCA 746

FAMILY LAW – CHILDREN – Interim

Family Law Act 1975 (Cth) ss 62G, 69L, 69ZW

Dicosta & Dicosta [2008] FamCAFC 161
Goode v Goode (2006) FLC 93-286

APPLICANT:

Ms Andrews

RESPONDENT:

Mr Killarney

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

2221

2009

DATE DELIVERED:

22 July 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

22 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms A. Frizelle

SOLICITORS FOR THE APPLICANT:

Elliadis & Associates

SOLICITOR FOR THE RESPONDENT:

Ms Reeve

SOLICITORS FOR THE RESPONDENT:

Eaton Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms McArdle

Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

The child, …, born … September 1998, live with the Father.
The child spend time with his mother at such times and on such dates as may be arranged with the Family Consultant in accordance with Order 3 of these Orders PROVIDED THAT such times will occur not less than once per month and if possible more often, subject to the availability of the Family Consultant and on the giving of not less than 7 days notice by the Family Consultant.

IT IS ORDERED THAT

Pursuant to Section 65L of the Family Law Act 1975:
a.   Compliance with these parenting orders is to be supervised by Ms S, Family Consultant, Child Dispute Services of the Family Court of Australia Brisbane Registry;
b.   The Family Consultant will give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;
c.   The parties will do all things, sign all documents, attend all appointments and ensure the child attends all appointments as are reasonably necessary for the purposes of these orders; and
d.   The Family Consultant to address the following matters:
i.the supervision undertaken and contact with the parties and the child;
ii.the father’s willingness to facilitate a relationship between the child and his mother;
iii.the mother’s capacity to rebuild a relationship with the child; and
iv.the child’s circumstances in terms of his response to spending time with his mother and his ability to cope with seeing his mother.
The Family Consultant has liberty to discontinue any and all of the appointments referred to in Orders 2 and 3 above should they consider it not in the child’s best interests for the appointments to continue AND should that occur, the Family Consultant will notify the Independent Children’s Lawyer of her decision to discontinue the appointments and provide the report referred to in Order 3 d. within 14 days of that decision.
As part of the s65L supervision process, the Family Consultant shall specifically assess and address the issue of whether it is in the child’s best interest for orders to be made in the interim that he spend time in addition to that provided for pursuant to the s65L process, supervised at the Logan Contact…

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 Andrews and Killarney

Details

AGLC: Andrews and Killarney [2009] FamCA 746
Case: [2009] FamCA 746
Decision Date: 22 July 2009

CaseChat Overview and Summary

This matter concerned parenting orders made by Justice Murphy in the Family Court of Australia. The dispute involved the living arrangements and time spent between a child and his parents. The court made orders for the child to live with the Father and to spend time with the Mother, with the specifics of this contact to be arranged by a Family Consultant.

The court was required to determine the best interests of the child in relation to his living arrangements and contact with his parents. Central to this determination was the role of a Family Consultant, Ms S, who was appointed to supervise compliance with the parenting orders, provide assistance to the parties, and assess various aspects of the child's relationship with both parents, including the father's willingness to facilitate contact and the mother's capacity to rebuild a relationship. The court also considered whether additional supervised contact at a specific centre was in the child's best interests.

Justice Murphy applied the principles of the *Family Law Act 1975*, particularly section 65L, which empowers the court to order the appointment of a Family Consultant to assist in the carrying out of parenting orders. The court's reasoning focused on ensuring the child's welfare by facilitating a structured and supervised process for rebuilding the parent-child relationship, with ongoing assessment by a professional. The court also directed the preparation of psychiatric reports for both parties and an assessment by the Independent Children's Lawyer regarding the child's interview.

The matter was adjourned for further directions, with specific instructions for the Family Consultant to provide a report on various issues, including the child's best interests regarding additional supervised contact. The court also ordered that particulars of the obligations and consequences of contravening the orders, along with information on available assistance, be provided to the parties via a Fact Sheet.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER THAT

The child, …, born … September 1998, live with the Father.

The child spend time with his mother at such times and on such dates as may be arranged with the Family Consultant in accordance with Order 3 of these Orders PROVIDED THAT such times will occur not less than once per month and if possible more often, subject to the availability of the Family Consultant and on the giving of not less than 7 days notice by the Family Consultant.

IT IS ORDERED THAT

Pursuant to Section 65L of the Family Law Act 1975:

a. Compliance with these parenting orders is to be supervised by Ms S, Family Consultant, Child Dispute Services of the Family Court of Australia Brisbane Registry;

b. The Family Consultant will give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;

c. The parties will do all things, sign all documents, attend all appointments and ensure the child attends all appointments as are reasonably necessary for the purposes of these orders; and

d. The Family Consultant to address the following matters:

i. the supervision undertaken and contact with the parties and the child;

ii. the father’s willingness to facilitate a relationship between the child and his mother;

iii. the mother’s capacity to rebuild a relationship with the child; and

iv. the child’s circumstances in terms of his response to spending time with his mother and his ability to cope with seeing his mother.

The Family Consultant has liberty to discontinue any and all of the appointments referred to in Orders 2 and 3 above should they consider it not in the child’s best interests for the appointments to continue AND should that occur, the Family Consultant will notify the Independent Children’s Lawyer of her decision to discontinue the appointments and provide the report referred to in Order 3 d. within 14 days of that decision.

As part of the s65L supervision process, the Family Consultant shall specifically assess and address the issue of whether it is in the child’s best interest for orders to be made in the interim that he spend time in addition to that provided for pursuant to the s65L process, supervised at the Logan Contact Centre.

It is specifically requested that Ms S or such other Family Consultant undertaking the s65L process contemplated by these orders, prepare a short report with respect to the issue referred to in the previous paragraph of these orders (together with such other issues as Ms S or other Family Consultant might consider directly relevant) in preparation for the further mention of this matter on 13 November 2009.

The parties do all such things, sign all such documents and authorities and pay all such reasonable fees as might be necessary and attend all such interviews as might be nominated, so as to allow Dr M, psychiatrist to prepare a psychiatric report in respect to of each of the parties.

IT IS DIRECTED THAT

The Independent Children's Lawyer, at the time of briefing Dr M to provide the Report referred to in paragraph 7 of these orders, request of Dr M an assessment, based on her interviews with the parties, her reading of the report by Ms S, and the s69ZW report, as to whether it is in the child’s best interest for her to interview and assess him.

Leave be granted to the Independent Children's Lawyer to provide to Dr M:

a. the Report of Ms S;

b. the s69ZW report;

c. such documents produced pursuant to subpoena from the Queensland Police Service.

10.

A copy of the s69ZW Report provided by the Department of Communities (Child Safety Services) be provided to the legal representatives of the parties.

IT IS FURTHER ORDERED THAT

11.

The matter be adjourned to the Magellan Directions List before Justice Murphy at 11.00am on 13 November 2009 in the Brisbane Registry of the Family Court of Australia.

12.

The Independent Children’s Lawyer and the parties have liberty to relist the matter on 7 days notice in writing.

13.

Pursuant to s 65DA(2) and s 62B, 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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.