BENNETT & ROBERTS - [2015] FamCA 1139

FAMILY COURT OF AUSTRALIA

BENNETT & ROBERTS	[2015] FamCA 1139
FAMILY LAW – CHILDREN – Application by father to spend time with and communicate with child – Allegations of drug and alcohol abuse – whether child is at unacceptable risk in the unsupervised care of the father – Orders that child live with the mother – Order that mother have sole parental responsibility for the child subject to certain conditions – Order that father spend supervised time with the child – Order that there be communication between the father and child as agreed in writing between the parents.

Family Law Act 1975 (Cth) s 60CC

Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038
APPLICANT:	Mr Bennett

RESPONDENT:

Ms Roberts

INDEPENDENT CHILDREN’S LAWYER:

Mr Patrick Fitzgerald

FILE NUMBER:

HBC

2013

DATE DELIVERED:

18 December 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

28, 29 & 30 September, 1 & 2 October, 2 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Turnbull

SOLICITOR FOR THE APPLICANT:

Ogilvie Jennings

COUNSEL FOR THE RESPONDENT:

Mrs Mooney

SOLICITOR FOR THE RESPONDENT:

Women's Legal Service

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

Orders

All previous parenting orders in respect of the child A born … 2011 (‘the child’) are discharged and vacated as and from the date of this Order.
Ms Roberts (‘the mother’) shall have sole parental responsibility for the child, subject to:-
(a)such sole parental responsibility does not include changing the child’s name;
(b)the parties ensuring that the child’s school and medical records show that both the father and the mother are entitled to information relating to the child; and
(c)the mother keeping the father informed of any major long-term issue she makes or proposes to make with regard to the child; where reasonably possible in advance.
BY CONSENT The child shall live with the mother.
The child shall spend time with the father:-
(a)As and from the date of this Order up and until 2016 the child spend supervised time with the father one day each calendar month:-
i.such time to be supervised by and at the X Contact Service; for up to four hours until June 2016; and then for 6 hours from July 2016 to December 2016, as long as the Service can make itself available to accommodate that time.
ii.in the event that the X Contact Service are unable or unwilling to accommodate such time, the father shall spend time with the child such time to be supervised by an employee of Y Child Care Service (or similar service agreed between the child’s parents) for one day each month for up to four hours until June 2016 and then for six hours from July 2016 to December 2016, as is specifically arranged by the parties.
(b)In addition, as and from the date of this Order, the child will spend supervised time with the father for six hours on Father’s Day and…

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 BENNETT & ROBERTS

Details

AGLC: BENNETT & ROBERTS [2015] FamCA 1139
Case: [2015] FamCA 1139
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the matter of *Bennett & Roberts*, Benjamin J considered parenting orders concerning a child born in 2011. The dispute involved the mother, Ms Roberts, and the father, Mr Bennett, regarding the future care and time arrangements for their child.

The court was required to determine the specific parenting orders that would govern the child's life, including issues of parental responsibility, the child's residence, and the nature and extent of the child's time with each parent. The court also had to consider the terms of any injunctions and the discharge of previous orders and appointments.

Benjamin J discharged all previous parenting orders and made new orders. The mother was granted sole parental responsibility, with specific exceptions regarding the child's name change and the requirement to keep the father informed of major long-term issues. The child was to live with the mother by consent. The father's time with the child was to be supervised and was structured with increasing duration and frequency over time, commencing with monthly supervised visits and progressing to fortnightly supervised visits from January 2017. The father was ordered to meet the costs of supervision, and communication between the child and father was to be as agreed in writing. An injunction was also granted, prohibiting the father from using alcohol or illicit drugs while the child was in his care. The court also addressed the return of documents and exhibits, the dismissal of extant applications, and the potential for relisting the proceedings for mechanical orders.

Orders

Orders of the court

All previous parenting orders in respect of the child A born … 2011 (‘the child’) are discharged and vacated as and from the date of this Order.

Ms Roberts (‘the mother’) shall have sole parental responsibility for the child, subject to:-

(a) such sole parental responsibility does not include changing the child’s name;

(b) the parties ensuring that the child’s school and medical records show that both the father and the mother are entitled to information relating to the child; and

(c) the mother keeping the father informed of any major long-term issue she makes or proposes to make with regard to the child; where reasonably possible in advance.

BY CONSENT The child shall live with the mother.

The child shall spend time with the father:-

(a) As and from the date of this Order up and until 2016 the child spend supervised time with the father one day each calendar month:-

i. such time to be supervised by and at the X Contact Service; for up to four hours until June 2016; and then for 6 hours from July 2016 to December 2016, as long as the Service can make itself available to accommodate that time.

ii. in the event that the X Contact Service are unable or unwilling to accommodate such time, the father shall spend time with the child such time to be supervised by an employee of Y Child Care Service (or similar service agreed between the child’s parents) for one day each month for up to four hours until June 2016 and then for six hours from July 2016 to December 2016, as is specifically arranged by the parties.

(b) In addition, as and from the date of this Order, the child will spend supervised time with the father for six hours on Father’s Day and four hours within seven (7) days of the child’s birthday and Christmas Day. Such time to be supervised in accordance with order 4(a) above.

(c) As and from 7 January 2017 the child shall spend supervised time with the father one Sunday each fortnight from 9.00am to 5.00pm (excluding Mother’s Day if the Sunday falls on that day, with makeup time the following Sunday); such time to be supervised in accordance with order 4(a) above.

Such other and/or alternate times as is agreed between the parents.

The father is to meet the costs of any supervision.

Communication between the child and the father as is agreed in writing between the parents.

BY CONSENT by way of injunction the father not use or be affected by alcohol or illicit drugs substance whilst the child is in his care

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.

10.

Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits (except for the parties’ case summaries, submissions and expert reports) are returned to the person or persons who tendered the same.

11.

All extant applications, except costs applications, be otherwise dismissed and these proceedings be removed from the list of cases awaiting finalization.

12.

Leave is given to the parties to relist the proceeding for mechanical orders (if the parties are unable to agree on the process of such time) for a period of one year from the date of this order

13.

Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).

14.

The appointment of the Independent Children’s Lawyer be discharged twenty eight (28) days from the date of these orders or such other time as is ordered if an appeal is lodged.

IT IS CERTIFIED

15.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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