Blakely and Dahlman and Ors - [2018] FCCA 574

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAKELY & DAHLMAN & ORS

[2018] FCCA 574

Catchwords:
FAMILY LAW – PARENTING – Where the father has spent time with his daughter aged 11 for much of her life but is sadly now in the grip of an addiction to methamphetamine (ice) and has psychotic episodes during which he hears voices, argues with imaginary people and becomes very aggressive – where the child has also spent time with her paternal grandparents all her life – where the mother and the paternal grandparents have always had a good relationship – where the paternal grandparents are reluctant to abandon their son but can be trusted to comply with an order that the child not be brought into contact with the father – order made for the child to spend no time with and have no communication with her father unless the mother agrees in writing but to spend alternate weekends and time during the school holidays with the paternal grandparents.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Mitchell & Northcott (No.3) [2017] FamCA 461

Applicant:

MS BLAKELY

First Respondent:

MR DAHLMAN

Second Respondents:

MR A DAHLMAN & MS B DAHLMAN

File Number:

NCC 3392 of 2014

Judgment of:

Judge Terry

Hearing dates:

5 & 6 February 2018

Date of Last Submission:

6 February 2018

Delivered at:

Newcastle

Delivered on:

12 February 2018

REPRESENTATION

Counsel for the Applicant:

Ms Court

Solicitors for the Applicant:

Ashby Family Solicitors

Solicitor Advocate for the First Respondent:

Mr Kogias

Solicitors for the First Respondent:

Chris Kogias Solicitors

The Second Respondents:

In Person

Counsel for the Independent Children’s Lawyer:

Ms Carty

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Gosford

ORDERS

All previous parenting orders are hereby discharged.
The mother shall have sole parental responsibility for the child [X] born … 2007 (“the child”).
The child shall live with the mother.
Subject to order 11 the child shall spend no time with and have no communication with the father.
The child shall spend time with the paternal grandparents as agreed between the mother and paternal grandparents, and failing agreement as follows:
(a)Each alternate weekend from after school Thursday (or 3pm Thursday on non-school days) until the commencement of school Monday (or 9am Monday on a non-school day).
(b)Such other times as agreed between the mother and the paternal grandparents.
Changeover is to occur at the child’s school on school days and on non-school days by the mother dropping the child to the paternal grandparents’ house at the commencement of the child’s time with the paternal grandparents and collecting the child from the paternal grandparents’ house at the conclusion of such time.
Each party shall be and is hereby restrained from making critical or derogatory remarks in relation to any other party in the presence or hearing of the child and each party shall do all things necessary to ensure that no third party makes critical comments about any other party in the presence or hearing of the child.
The mother…

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.

Keep reading for free

Create a free CaseChat account to read Blakely and Dahlman and Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 574
Decision Date: 12 February 2018

CaseChat Overview and Summary

This matter concerned parenting orders for the child [X], born in 2007, between the mother and the father. The court was required to determine the most appropriate parenting arrangements, considering the child's best interests, particularly in light of allegations of family violence and the father's drug use.

The central legal issues before the court were the benefit to the child of a meaningful relationship with both parents, and the paramount need to protect the child from physical or psychological harm, abuse, neglect, or family violence, as stipulated by section 60CC(2) and (2A) of the *Family Law Act 1975* (Cth). The court had to weigh these competing considerations, with a clear directive to prioritise the child's safety.

The court reasoned that while most children benefit from a relationship with both parents, the need to protect the child from harm takes precedence. The mother had previously facilitated the child's relationship with the father but ceased contact due to the child's disclosures of the father's erratic and aggressive behaviour, and subsequent events, including the father's psychotic episode and positive tests for illicit substances. The court found that the father's drug use, potential mental health issues, and history of aggression, including specific threats and assaults, rendered the child unsafe in his care. Consequently, the court discharged all previous parenting orders.

The court ordered that the mother have sole parental responsibility for the child, and that the child live with the mother. The child was to spend no time with and have no communication with the father, subject to specific conditions. The child was to spend time with the paternal grandparents under agreed terms or as specified, with injunctions imposed on both the paternal grandparents and the father to prevent contact between the child and the father. The father was also restrained from approaching specified locations, including the child's school and residences.

Orders

Orders of the court

All previous parenting orders are hereby discharged.

The mother shall have sole parental responsibility for the child [X] born … 2007 (“the child”).

The child shall live with the mother.

Subject to order 11 the child shall spend no time with and have no communication with the father.

The child shall spend time with the paternal grandparents as agreed between the mother and paternal grandparents, and failing agreement as follows:

(a) Each alternate weekend from after school Thursday (or 3pm Thursday on non-school days) until the commencement of school Monday (or 9am Monday on a non-school day).

(b) Such other times as agreed between the mother and the paternal grandparents.

Changeover is to occur at the child’s school on school days and on non-school days by the mother dropping the child to the paternal grandparents’ house at the commencement of the child’s time with the paternal grandparents and collecting the child from the paternal grandparents’ house at the conclusion of such time.

Each party shall be and is hereby restrained from making critical or derogatory remarks in relation to any other party in the presence or hearing of the child and each party shall do all things necessary to ensure that no third party makes critical comments about any other party in the presence or hearing of the child.

The mother shall keep the paternal grandparents informed of any medical illnesses suffered by the child that require the paternal grandparents to provide the child with medication or other treatment during the time the child is spending with them.

The mother shall promptly inform the paternal grandparents if the child is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed as suffering from a serious illness.

10.

The mother and paternal grandparents shall advise each other and keep each other informed of their current addresses and contact telephone numbers (including both landline and mobile phone number if applicable) and advise each other of any changes to these details within seven days of such change occurring.

11.

The paternal grandparents shall be and are hereby restrained by injunction from permitting the child to come into contact with or be or remain in the presence of the respondent father or have communication of any kind with the respondent father at any time that the child is in their care, unless with the express written consent of the mother.

12.

The father shall be and is hereby restrained by injunction from:

(a) approaching or remaining within 100 metres of any school that the child attends;

(b) approaching or remaining within 100 metres of the home in which the child and the mother reside; and

(c) approaching or remaining within 100 metres of the home of the paternal grandparents whenever the child is spending time with the paternal grandparents.

Background

Background to the litigation

I must consider the child’s maturity, sex and background. That is not relevant as a separate consideration and neither is the next one: attitude to the child and to the responsibilities of parenthood. Family violence I have discussed, and it is a serious issue. [X] told the school counsellor that she was frightened of the father yelling and screaming. He has threatened to smash the paternal grandfather and he has assaulted his girlfriend. The father’s propensity to commit acts of family violence is a real concern in this case. I must consider whether there is any family violence order is in place. There is one in place to protect the paternal grandparents. It does not prevent contact but it does mean the father cannot live at the paternal grandparents’ home. The paternal grandfather is trying to assist the father to an extent in relation to that charge and the ADVO. I have enormous sympathy for him but it raises a tiny little concern in my mind about priorities. I must consider whether it is preferable to make the order least likely to lead to further proceedings. The order least likely to lead to further proceedings is an order for no time with the father. An order for any time, and even an order for telephone communication, could result in the matter speedily returning to court. I must consider any other relevant matter but everything has been covered. At this point I must go back to the primary considerations in s. 60CC (2) of the Family Law Act 1975 and they are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. Most children, all children if they can have it, benefit from having a meaningful relationship with both of their parents. Most children know they have two parents, they want to have a good relationship with both of them, and if there are no problems with the parents children benefit from having a meaningful relationship with both of them. The father’s case during cross-examination was that the mother did not support him having a meaningful relationship with [X]. That proposition is completely and utterly unsustainable on any examination of the evidence. The mother facilitated [X] spending time with the father from when she was a baby until when she was seven years old. She stopped time only because of the child’s disclosures about the father’s erratic and aggressive behaviour, and given what has happened since those disclosures she abundantly did the right thing. Even after proceedings were commenced the mother still wasn’t saying “You are not going to see your child.” She agreed to the father continuing to see the child providing she slept at the paternal grandparents’ home. Then the father had the psychotic episode and the change was that the time had to be supervised by the paternal grandparents: still not a no time application. It was only after the two recent positive tests for ice that the mother finally admitted defeat and sought an order that child spend no time and have no communication with the father.

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

At this point I must go back to the primary considerations in s. 60CC (2) of the Family Law Act 1975 and they are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. Most children, all children if they can have it, benefit from having a meaningful relationship with both of their parents. Most children know they have two parents, they want to have a good relationship with both of them, and if there are no problems with the parents children benefit from having a meaningful relationship with both of them. The father’s case during cross-examination was that the mother did not support him having a meaningful relationship with [X]. That proposition is completely and utterly unsustainable on any examination of the evidence. The mother facilitated [X] spending time with the father from when she was a baby until when she was seven years old. She stopped time only because of the child’s disclosures about the father’s erratic and aggressive behaviour, and given what has happened since those disclosures she abundantly did the right thing. Even after proceedings were commenced the mother still wasn’t saying “You are not going to see your child.” She agreed to the father continuing to see the child providing she slept at the paternal grandparents’ home. Then the father had the psychotic episode and the change was that the time had to be supervised by the paternal grandparents: still not a no time application. It was only after the two recent positive tests for ice that the mother finally admitted defeat and sought an order that child spend no time and have no communication with the father. It is abundantly clear that the mother has the capacity to facilitate the child having a relationship with the father if it is safe for the child to do so. That leads to the second primary consideration which is the need to protect the child from harm from being exposed to abuse, neglect or family violence. S.60CC(2A) of the Family Law Act 1975 says that I have to prioritise that over the benefit to the child of having a meaningful relationship with both of her parents. I cannot be sure if the father’s primary problems are drug use leading to mental health issues and aggression or mental health issues making him prone to drug use and aggression, or whether it is a combination of that. However it doesn’t matter because on all of the evidence before me, at the moment [X] would be unsafe in the father’s care. He has been aggressive on numerous occasions over the years: he assaulted his girlfriend in 2016; he threatened to smash the paternal grandfather in September 2017; he is having paranoid delusions. The family report writer said that this made him particularly fearful about what could happen. He said he was fearful for the father’s parents and commented that meth frightened him.