Betty and Ogienko and Ors - [2012] FamCA 61

FAMILY COURT OF AUSTRALIA

BETTY & OGIENKO AND ORS

[2012] FamCA 61

FAMILY LAW - CHILDREN – parental responsibility – with whom a child shall live and spend time – paternal great grandmother and father withdrew from proceedings – eldest child of the parties lived with and was predominantly cared for by the maternal grandmother - the youngest child lived with the mother – children enjoy a meaningful relationship with mother and maternal grandmother – children have a close relationship with one another - allegations of child abuse and exposure of children to family violence – history of periods of disharmony between mother and maternal grandmother where children were deprived of contact with each other and the party with whom they do not live - mother’s history of misuse of alcohol and use of illicit drugs – mother’s differential treatment of the children with the mother being closer to the youngest child than the eldest child – sole parental responsibility allocated to maternal grandmother – children to live with maternal grandmother and to spend time with mother

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68B, 67ZC, 114

Aldridge & Keaton (2009) FLC 93-421
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
L v T (1999) FLC 92-875
MRR v GR (2010) 240 CLR 461
Potts & Bims & Ors [2007] FamCA 394
T & N (2003) FLC 93-172

APPLICANT:

Ms Betty

1st RESPONDENT:

Ms M Ogienko

2nd RESPONDENT:

Mr Gover

3rd RESPONDENT:

Ms N Ogienko

INDEPENDENT CHILDREN’S LAWYER:

Ms Moran, Coast Law

FILE NUMBER:

NCC

1131

2009

DATE DELIVERED:

23 February 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

31 January & 1 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE 1ST RESPONDENT:

Mr Mooney

SOLICITOR FOR THE 1ST RESPONDENT:

Craney Family Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT:

Not Applicable

COUNSEL FOR THE 3RD RESPONDENT:

Mr Bateman

SOLICITOR FOR THE 3RD RESPONDENT:

Arnold Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Moran, Coast Law

Orders

All former parenting orders relating to the children D, born … May 2005, and T, born … July 2008, (“the children”) are discharged.
The first respondent (“the maternal grandmother”) shall have sole parental responsibility for the children.
The children shall live with the maternal grandmother.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure the child D spends time with the third respondent (“the mother”):
(a)Each alternate Sunday between 10.00 am and 5.00 pm (with such time to coincide with the time spent by T with the mother pursuant to Orders 5(a) and 5(b) hereof);
(b)On the Mother’s Day weekend from 11.00 am Saturday until 11.00 pm Sunday;
(c)From 4.00 pm to 5.30 pm on 2 May and 1 July each year;
(d)From 11.00 am…

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.

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Details

Case: [2012] FamCA 61
Decision Date: 23 February 2012

CaseChat Overview and Summary

This matter concerned parenting orders for two children, D and T, born in 2005 and 2008 respectively. The proceedings involved the children's mother and their maternal grandmother. The court was required to determine the future parental responsibility and living arrangements for the children, as well as the time they would spend with their mother.

The central legal issues before the court were the allocation of parental responsibility, the primary residence of the children, and the specific arrangements for the children to spend time with their mother. The court also had to consider orders relating to communication between the children and their mother, as well as provisions for the exchange of information regarding the children's education and well-being. Further issues included restrictions on the mother's alcohol consumption and prohibitions against denigration of family members in the children's presence.

Austin J discharged all former parenting orders and made new orders. The maternal grandmother was granted sole parental responsibility, and the children were to live with her. The court then detailed specific arrangements for the children to spend time with the mother, including alternate Sundays, Mother's Day weekend, and specific dates around May and July. Detailed provisions were also made for Christmas time, alternating between the children spending time with the mother on Christmas Eve and Christmas Day in odd and even years respectively. The orders also stipulated regular telephone communication between the children and both parents, and established a specific location for the handover of the children. Crucially, the mother was restrained from consuming alcohol during periods of time spent with the children and for 12 hours prior, and both parents were prohibited from denigrating each other or other family members in the children's presence. The maternal grandmother was also directed to provide school reports to the mother at her expense, and both parties were ordered to keep each other informed of their contact details and the children's activities.

Orders

Orders of the court

All former parenting orders relating to the children D, born … May 2005, and T, born … July 2008, (“the children”) are discharged.

The first respondent (“the maternal grandmother”) shall have sole parental responsibility for the children.

The children shall live with the maternal grandmother.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure the child D spends time with the third respondent (“the mother”):

(a) Each alternate Sunday between 10.00 am and 5.00 pm (with such time to coincide with the time spent by T with the mother pursuant to Orders 5(a) and 5(b) hereof);

(b) On the Mother’s Day weekend from 11.00 am Saturday until 11.00 pm Sunday;

(d) From 11.00 am on Christmas Eve until 11.00 am on Christmas Day in 2013 and every odd year thereafter;

(e) From 11.00 am on Christmas Day until 11.00 am on Boxing Day in 2012 and every even year thereafter.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure the child T spends time with the mother:

(a) Until the child commences full-time school, each alternate week from 5.00 pm Thursday until 5.00 pm Sunday, commencing on the second Thursday following the making of these orders;

(b) Once the child commences full-time school, each alternate week from 5.00 pm Friday until 5.00 pm Sunday.

(d) From 4.00 pm to 5.30 pm on 2 May and 1 July each year;

(e) From 11.00 am on Christmas Eve until 11.00 am on Christmas Day in 2013 and every odd year thereafter;

(f) From 11.00 am on Christmas Day until 11.00 am on Boxing Day in 2012 and every even year thereafter.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children, or either of them, communicate privately by telephone with:

(a) The mother each Tuesday and Friday when the children are living with the maternal grandmother, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the maternal grandmother, and the maternal grandmother shall ensure that the children are able to receive the mother’s calls on that number at that time.

(b) The maternal grandmother each Saturday when the youngest child is spending time with the mother, between 6.00 pm and 6.30 pm, and for that purpose the maternal grandmother shall telephone the child on the telephone number provided to her by the mother, and the mother shall ensure that the child is are able to receive the maternal grandmother’s calls on that number at that time.

For the purposes of implementing the time spent by the children with the mother pursuant to Orders 4 and 5 hereof, the maternal grandmother shall cause the delivery and the mother shall cause the collection of the children at the commencement of the time to be spent by them with the mother at Shop A, Town N, NSW, and the mother shall cause the delivery and the maternal grandmother shall cause the collection of the children at the conclusion of the time spent by them with the mother at the same place.

The mother is restrained from consuming alcohol during any period in which the children spend time with her, and also during the period of 12 hours immediately preceding such time.

Each party is restrained from denigrating the other or any other member of the children’s family in the presence or hearing of the children, and from permitting the child to remain in the presence or hearing of another person denigrating the other or any other member of their family.

10.

The maternal grandmother shall authorise and request the principal of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.

11.

Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.

12.

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

13.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

14.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

15.

Any and all outstanding applications are dismissed.

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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