Bentleigh and Bentleigh - [2018] FamCA 264

FAMILY COURT OF AUSTRALIA

BENTLEIGH & BENTLEIGH

[2018] FamCA 264

FAMILY LAW – CHILDREN – Interim Parenting – Best Interests – Where the father seeks orders that the children be removed from the care of the mother and placed in his primary care – Where final orders were made following defended hearing in May 2017 – Where the trial judge found that neither parent posed an unacceptable risk of harm to the children – Where the trial judge made orders that the children live with the mother and spend time with the father – Where a significant issue at final hearing was the mother’s allegations the father had sexually abused the children – Where the mother accepted in the course of the final hearing that the children had not been sexually abused – Where the mother withheld the children from the father four months after final orders were made in May 2017 – Where the mother has been non-compliant with the final orders – Where there has been significant change in the children’s circumstances to justify the reopening of the parenting proceedings on an interim basis – Where the father contends the mother poses a risk of psychological harm to the children – Where the mother contends the father has seriously neglected the children – Where it cannot be found that either parent poses an unacceptable risk of harm to the children – Where the risk of psychological harm posed by the mother can be mitigated by orders being made for the parties to attend therapy – Where the father’s parenting capacity is untested – Where the children would experience significant distress if orders were made as sought by the father – Father’s interim parenting application dismissed – Orders made for family therapy.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Bentleigh & Bentleigh [2017] FamCA 294
Deiter & Deiter [2011] FamCAFC 82
Garraghan & Westerfield (No 2) [2014] FamCAFC 96
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
Miller & Harrington (2008) FLC 93-383
Prewett & Mann [2013] FamCAFC 130
Rice & Asplund (1979) FLC 90-725
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Bentleigh

RESPONDENT:

Ms Bentleigh

INDEPENDENT CHILDREN’S LAWYER:

Stanfords Solicitors

FILE NUMBER:

PAC

4005

2014

DATE DELIVERED:

27 April 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam

HEARING DATE:

3 & 4 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

Lewarne & Goldsmith

COUNSEL FOR THE RESPONDENT:

Mr Hill

SOLICITOR FOR THE RESPONDENT:

Perdriau Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stanfords Solicitors

Orders

By consent, the mother is restrained from permitting the children engaging in any form of counselling or therapy or permitting any other person to do so without the consent of the father.
By consent, the parties are restrained from…

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 Bentleigh and Bentleigh

Details

AGLC: Bentleigh and Bentleigh [2018] FamCA 264
Case: [2018] FamCA 264
Decision Date: 27 April 2018

CaseChat Overview and Summary

The matter of *Bentleigh and Bentleigh* concerned an application before Hannam J in the Federal Circuit Court of Australia. The dispute involved parenting orders concerning two children, B and C. The orders were made by consent in part, with further orders determined by the court.

The court was required to determine the terms of parenting orders addressing the children's counselling and therapy, the recording of conversations with the children, and the presentation of the children to services or agencies regarding complaints about the other parent. Additionally, the court considered an interim parenting application filed by the father and the need for therapeutic counselling for the parents and children.

Hannam J made orders by consent restraining the mother from permitting the children to engage in counselling or therapy without the father's consent, and restraining both parties from recording conversations with the children. Both parties were also restrained from presenting the children to any service or agency regarding complaints about the other parent, except as previously ordered. The father's interim parenting application was dismissed. The court further ordered that the parents, within 21 days, contact CC Psychology to arrange an intake appointment for therapeutic counselling for themselves and the children. The parents were directed to ensure the children's attendance at all scheduled appointments, attend themselves as requested by the therapist, and comply with the therapist's recommendations. The Independent Children’s Lawyer was directed to provide specific reports and previous judgments to the therapist.

Orders

Orders of the court

By consent, the mother is restrained from permitting the children engaging in any form of counselling or therapy or permitting any other person to do so without the consent of the father.

By consent, the parties are restrained from recording any conversation with the children or either of them or permitting any other person to do so.

Both parties are restrained from presenting the children to any service or any agency or permitting any other person to do so in relation to any disclosure or complaint made by the children about the care of the other parent or parent’s family other than in accordance with the orders of 11 May 2017.

Further orders

That the Interim Parenting Application filed by the father on 23 November 2017 be dismissed.

The parents shall within 21 days contact CC Psychology (“the Therapist”), for the purpose of arranging and attending the first available and offered intake appointment to enable the parents and B born … 2008 and C born … 2011 (“the children”), to participate in therapeutic counselling.

For the purposes of Order (5), each party shall:

(a) Ensure the children attend all scheduled appointments for as long as the Therapist deems necessary;

(b) Attend appointments themselves as requested by the Therapist; and

(c) Comply with recommendations made by the Therapist including attendance upon any other person that therapist may recommend.

The Independent Children’s Lawyer shall provide to the Therapist a copy of the report of Dr G, Dr H and a copy of the Reasons for Judgment dated 11 May 2017 and 27 April 2018.

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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