Barclay and Menzies and Ors - [2010] FamCA 671

FAMILY COURT OF AUSTRALIA

BARCLAY & MENZIES AND ORS

[2010] FamCA 671

FAMILY LAW – CHILDREN – Parental responsibility – With whom children live and spend time– Complicated parenting regime for four children born by one mother to three fathers – Application to adjourn dismissed – Expert evidence of the single expert witness – Failure of second respondent to participate in proceedings – Family violence – Alignment of the children against the mother – Ability to foster and encourage relationship between parents and children

Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 229
Goode & Goode (2006) FLC 93-286
Potts & Bims & Ors [2007] FamCA 394
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Mr Barclay

1st RESPONDENT:

Ms Menzies

2nd RESPONDENT:

Mr Hoover

3rd RESPONDENT:

Mr Dunn

INDEPENDENT CHILDREN’S LAWYER:

Ms Neisha Shepherd, Neisha Shepherd Solicitors

FILE NUMBER:

NCC

3027

2008

DATE DELIVERED:

5 August 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

12, 13, 14 & 15 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Mr Ferry, Ferrys Law Firm

COUNSEL FOR THE 1ST RESPONDENT:

Mr Mooney

SOLICITOR FOR THE 1ST RESPONDENT:

Ms Munsie, J J Lees & Associates

COUNSEL FOR THE 2ND RESPONDENT:

Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT:

Not Applicable

COUNSEL FOR THE 3RD RESPONDENT:

Not Applicable

SOLICITOR FOR THE 3RD RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Goodchild

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Neisha Shepherd Solicitors

Orders

All former parenting orders in respect of the following children are discharged:
(a)       M Hoover, born on … June 1997.
(b)       T Menzies, born on … January 2002.
(c)       A Barclay, born on … September 2003.
(d)       F Barclay, born on … May 2006.
The applicant and first respondent shall have equal shared parental responsibility for the child M.
The child M shall live with the applicant.
The first respondent and third respondent shall have equal shared parental responsibility for the child T.
The child T shall live:
(a)With the first respondent until 5.00 pm on Friday 6 August 2010,
(b)With the third respondent, each alternate week, commencing from 5.00 pm on Friday 6 August 2010 and concluding at 5.00 pm on Friday 13 August 2010, and
(c)With the first respondent, each alternate week, commencing from 5.00 pm on Friday 13 August 2010 and concluding at 5.00 pm on Friday 20 August 2010.
The first respondent and third respondent shall take all reasonable steps to ensure that the child T communicates with:
(a)The third respondent each Tuesday evening when the child is living with the first respondent, between 6.00 pm and 6.30 pm, and for that purpose the third respondent shall telephone the child on the telephone number provided to him by the first respondent, and the first respondent shall ensure that the child is able to receive the third respondent’s calls on that number at that time.
(b)The first respondent each Tuesday evening when the child is…

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 Barclay and Menzies and Ors

Details

AGLC: Barclay and Menzies and Ors [2010] FamCA 671
Case: [2010] FamCA 671
Decision Date: 5 August 2010

CaseChat Overview and Summary

In the matter of *Barclay and Menzies and Ors*, Justice Austin of the Family Court of Australia considered applications concerning the parenting arrangements for four children: M Hoover, T Menzies, A Barclay, and F Barclay. The dispute involved the parents of these children and their respective responsibilities and living arrangements.

The court was required to determine the specific parenting orders for each child, including issues of equal shared parental responsibility, the children's living arrangements, and the extent of time each parent would spend with the children. Further, the court needed to address communication arrangements between parents and children, as well as between siblings, and to make orders regarding the children's schooling and the provision of counselling services.

Justice Austin made extensive orders discharging previous parenting arrangements and establishing new ones. For M, equal shared parental responsibility was ordered, with M to live with the applicant. For T, equal shared parental responsibility was ordered between the first respondent and the third respondent, with T to live alternately with each. For A and F, equal shared parental responsibility was ordered between the applicant and the first respondent, with A and F to live with the first respondent, but with specific provisions for time spent with the applicant and their sibling M. The orders also included detailed provisions for communication, school enrolments, and the appointment of counsellors for M and T, with the Independent Children's Lawyer to investigate and arrange these services. Restraints were placed on denigration, corporal punishment, and smoking in the presence of the children. Both the applicant and first respondent were ordered to complete a post-separation parenting program.

Orders

Orders of the court

All former parenting orders in respect of the following children are discharged:

(a) M Hoover, born on … June 1997.

(b) T Menzies, born on … January 2002.

(d) F Barclay, born on … May 2006.

The applicant and first respondent shall have equal shared parental responsibility for the child M.

The child M shall live with the applicant.

The first respondent and third respondent shall have equal shared parental responsibility for the child T.

The child T shall live:

(a) With the first respondent until 5.00 pm on Friday 6 August 2010,

(b) With the third respondent, each alternate week, commencing from 5.00 pm on Friday 6 August 2010 and concluding at 5.00 pm on Friday 13 August 2010, and

(c) With the first respondent, each alternate week, commencing from 5.00 pm on Friday 13 August 2010 and concluding at 5.00 pm on Friday 20 August 2010.

The first respondent and third respondent shall take all reasonable steps to ensure that the child T communicates with:

(a) The third respondent each Tuesday evening when the child is living with the first respondent, between 6.00 pm and 6.30 pm, and for that purpose the third respondent shall telephone the child on the telephone number provided to him by the first respondent, and the first respondent shall ensure that the child is able to receive the third respondent’s calls on that number at that time.

(b) The first respondent each Tuesday evening when the child is living with the third respondent, between 6.00 pm and 6.30 pm, and for that purpose the first respondent shall telephone the child on the telephone number provided to her by the third respondent, and the third respondent shall ensure that the child is able to receive the first respondent’s calls on that number at that time.

For the purposes of implementing the living arrangements for the child pursuant to Order 5 hereof, the first respondent shall cause the delivery of the child to the third respondent’s residence at the commencement of each period that the child is to live with the third respondent, and the third respondent shall cause the delivery of the child to the first respondent’s residence at the commencement of each period that the child is to live with the first respondent.

The applicant and third respondent shall take all reasonable steps to ensure that the children M and T:

(a) Spend time with one another, for not less than three consecutive hours, on weekends when the child T is living with the third respondent pursuant to Order 5(b) hereof.

(b) Communicate with one another by telephone each Wednesday when the child T is living with the third respondent pursuant to Order 5(b) hereof, between 6.30 pm and 7.00 pm, and for that purpose the applicant and third respondent shall each ensure that the children are able to make and receive telephone calls to and from one another at that time on the telephone numbers notified by the applicant and third respondent to one another.

The applicant and first respondent shall have equal shared parental responsibility for the children A and F.

10.

The children A and F shall live with the first respondent.

11.

The applicant and first respondent shall take all reasonable steps to ensure that the children A and F spend time with the applicant and M:

(a) Until the child F commences school:

(i) During New South Wales public school terms, each alternate weekend from 5.30 pm Friday until 5.30 pm Sunday, commencing on the first weekend in each school term.

(ii) During New South Wales gazetted school holidays, for those periods of the holidays when the child T is living with the third respondent pursuant to Order 5(b) hereof, commencing and concluding 30 minutes after the times at which T is due to commence and conclude living with the third respondent under Order 5(b).

(b) After the child F commences school:

(i) During New South Wales public school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday, or Tuesday if a long weekend, commencing on the first weekend in each school term.

12.

The applicant and first respondent shall take all reasonable steps to ensure that the children A and F communicate with:

(a) The applicant and the child M each Wednesday evening when the children are living with the first respondent, between 6.00 pm and 6.30 pm, and for that purpose the applicant shall telephone the children on the telephone number provided to him by the first respondent, and the first respondent shall ensure that the children are able to receive the applicant’s calls on that number at that time.

(b) The first respondent each Wednesday evening when the children are spending time with the applicant, between 6.00 pm and 6.30 pm, and for that purpose the first respondent shall telephone the children on the telephone number provided to her by the applicant, and the applicant shall ensure that the children are able to receive the first respondent’s calls on that number at that time.

13.

For the purposes of implementing the time spent by the children with the applicant:

(a) Pursuant to Orders 11(a) and 11(b)(ii) hereof, the first respondent shall cause the delivery and the applicant shall cause the collection of the children at the commencement of the time to be spent with the applicant at the McDonalds Restaurant at H, NSW, and the applicant shall cause the delivery and the first respondent shall cause the collection of the children at the conclusion of the time spent with the applicant at the same place.

(b) Pursuant to Order 11(b)(i) hereof, the applicant shall collect the children from and return the children to school at the commencement and conclusion of the time spent by the children with him.

14.

The first respondent shall forthwith procure, and both the applicant and first respondent shall thereafter maintain, a communication book to facilitate communication between them in respect of issues related to the children M, A and F, and they shall each relay important information concerning those children to the other by way of written notification in the communication book, which will travel with the children at change-overs.

15.

Each party shall forthwith inform the other parties, and keep each other party informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

16.

The applicant and first respondent are restrained, without the written consent of the other, from changing the enrolments of the children M and A from their current schools.

17.

The applicant and first respondent shall ensure that the child F, when commencing school, is enrolled at the same school that A attends.

18.

The first respondent and third respondent are restrained, without the written consent of the other, from changing the enrolment of the child T from his current school.

19.

Each party is restrained from denigrating any of the other parties in the presence or hearing of any of the children, and from permitting any of the children to remain in the presence or hearing of another person denigrating any other party.

20.

Each party is restrained from causing or permitting the infliction of corporal punishment upon any of the children.

21.

Each party is restrained from allowing any of the children to remain in any car, house, or other confined space in the presence of any person who is smoking.

22.

Pursuant to s 65LA of the Family Law Act, the applicant and first respondent shall each forthwith enrol themselves to commence, participate in, and complete, a post-separation parenting program, for which program they shall seek and obtain approval from the Independent Children’s Lawyer.

23.

The Independent Children’s Lawyer shall forthwith investigate the most appropriate counselling service provider for the child M, to help her repair her relationship with the first respondent, and shall notify the applicant and first respondent within 14 days of:

(a) The name and contact details of the psychologist or counsellor chosen by her for the purpose of providing therapeutic counselling to M, and

(b) The date and time of M’s first appointment with that psychologist or counsellor, arranged by the Independent Children’s Lawyer.

24.

For the purposes of implementing the counselling pursuant to Order 23 hereof, the applicant and first respondent shall take all necessary steps to ensure that:

(a) M attends the appointment arranged by the Independent Children’s Lawyer pursuant to Order 23(b) hereof, and all subsequent counselling sessions recommended by the psychologist or counsellor, for as long as is deemed necessary by that psychologist or counsellor.

(b) They furnish the psychologist or counsellor with a copy of these orders.

(d) They participate, either individually or with M, or desist from participation, in such counselling at the direction of the psychologist or counsellor.

(e) They waive confidentiality and irrevocably authorise the psychologist or counsellor in writing to consult freely as the need arises with the psychologist or counsellor appointed to provide counselling to T pursuant to Orders 25 and 26 hereof.

25.

The Independent Children’s Lawyer shall forthwith investigate the most appropriate counselling service provider for the child T, to help him adjust to the change of living for equal time between the first respondent and third respondent, and shall notify the first respondent and third respondent within 14 days of:

(a) The name and contact details of the psychologist or counsellor chosen by her for the purpose of providing therapeutic counselling to T, and

(b) The date and time of T’s first appointment with that psychologist or counsellor, arranged by the Independent Children’s Lawyer.

26.

For the purposes of implementing the counselling pursuant to Order 25 hereof, the first respondent and third respondent shall take all necessary steps to ensure that:

(a) T attends the appointment arranged by the Independent Children’s Lawyer pursuant to Order 25(b) hereof, and all subsequent counselling sessions recommended by the psychologist or counsellor, for as long as is deemed necessary by that psychologist or counsellor.

(b) They furnish the psychologist or counsellor with a copy of these orders.

(d) They participate, either individually or with T, or desist from participation, in such counselling at the direction of the psychologist or counsellor.

27.

The applicant and first respondent shall do all things and sign all documents as may be necessary for the issue of a passport in respect of the child M.

28.

The Independent Children’s Lawyer is discharged upon compliance with Orders 22, 23, and 25 hereof.

29.

Any and all outstanding applications are dismissed.

30.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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

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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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