Bookhurst & Bookhurst - [2010] FamCAFC 26

FAMILY COURT OF AUSTRALIA

BOOKHURST & BOOKHURST

[2010] FamCAFC 26

FAMILY LAW - APPEAL – CHILDREN – SUPERVISION – Whether the trial judge erred in imposing a regime of supervised contact with the father – Where there was a history of family violence – Where the expert said it was important for the children to feel “safe” with the father – No error in implementing a regime of supervision – Appeal dismissed in part

FAMILY LAW - APPEAL – CHILDREN – SUPERVISION – Whether the specific terms of the supervision order made were erroneous – Where the trial judge was concerned to provide a mechanism to vary or cease supervision – Where the order provided that the supervision order could be varied if the father provided the mother with a report from a psychiatrist or psychologist that contains an “unqualified opinion” that the father does not nor is it reasonably foreseeable that he will pose a risk to the children – Where the trial judge initiated discussions with counsel about providing a “reassurance” to the mother and the children – Where such discussions took place after the close of evidence and during submissions – Where the specific terms of the order ultimately made were not contemplated – Where further evidence adduced during the appeal indicates that compliance with the terms of the order is impossible by an Australian psychologist or psychiatrist because of ethical considerations – Where the trial judge was not aware of such ethical matters – Where an “unqualified opinion” in the terms described could not be given – Where the method chosen to vary the supervision order was unworkable – Appeal allowed in part

FAMILY LAW - APPEAL – CHILDREN – DISCRETIONARY MATTERS – Whether the trial judge erred in allocating the mother sole parental responsibility with respect to the health, culture and religion of the children – Whether the trial judge erred in his treatment of the evidence as to the children’s views – Whether the trial judge erred in his treatment of the evidence of the expert – No error demonstrated

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Harrison v Woollard (1995) 18 FamLR 788; H v W (1995) FLC 92-598
House v The King (1936) 55 CLR 499

APPELLANT:

Mr Bookhurst

RESPONDENT:

Ms Bookhurst

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYC

1832

2009

APPEAL NUMBER:

2009

DATE DELIVERED:

3 March 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May, O’Ryan JJ

HEARING DATE:

31 August 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 January 2009

LOWER COURT MNC:

[2009] FamCA 6

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Wheelhouse SC

SOLICITOR FOR THE APPELLANT:

Slade Manwaring Solicitors

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

COUNSEL…

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 Bookhurst & Bookhurst

Details

AGLC: Bookhurst & Bookhurst [2010] FamCAFC 26
Case: [2010] FamCAFC 26
Decision Date: 3 March 2010

CaseChat Overview and Summary

In the matter of Bookhurst & Bookhurst, the appeal before the court centred on the supervision arrangements for the children in relation to their father, as well as the allocation of parental responsibilities concerning health, culture, and religion. The primary judge had ordered supervised contact with the father and granted the mother sole responsibility over the children’s health, culture, and religious matters. The father appealed the decision, contending that the trial judge erred in imposing a regime of supervised contact and in allocating sole responsibility to the mother.

The court examined whether the trial judge was correct in implementing a regime of supervised contact for the father, given the history of family violence and the expert's recommendation for the children's safety. The court concluded that no error was found in the imposition of supervised contact, as the safety and well-being of the children were paramount, and the trial judge had appropriately considered the expert's opinion. However, the court found that the specific terms of the supervision order were problematic. The order stipulated that supervision could be varied if the father provided a report from a psychiatrist or psychologist with an "unqualified opinion" that he posed no risk to the children. The court determined that this condition was unworkable due to ethical constraints faced by Australian psychologists and psychiatrists, which the trial judge was not aware of at the time.

In relation to the allocation of parental responsibilities, the court found no error in the trial judge's decision to grant the mother sole responsibility concerning the children's health, culture, and religion. The court upheld the trial judge’s approach to the evidence presented, including the children's views and the expert's testimony. The appeal was allowed in part, with the specific terms of the supervision order being set aside, and the parenting applications being remitted for re-hearing. The father was permitted to spend time with the children under the existing conditions until the re-hearing or until further interim orders were made.

Orders

Orders of the court

The appeal is allowed in part.

Paragraphs 4 and 5 of the orders made 16 January 2009 be set aside.

The parties’ applications for parenting orders be remitted for re-hearing.

Until the re-hearing of the applications or further interim orders the father spend time with the children as provided in order 4 of the orders made 16 January 2009 or at such other times and conditions as the parties may agree.

The husband file written submissions in relation to:

(a) the costs of the appeal; and

(b) the reserved costs including those orders made on 25 February, 20 March, 28 April and 26 June 2009.

Such submissions are to be filed within 28 days. Upon receipt of those submissions the wife and the Independent Children’s Lawyer file submissions in reply within 21 days. Upon receipt of those submissions the husband file any submissions in reply within 14 days.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.