Bouchard and Lyall and Anor - [2012] FamCA 766

FAMILY COURT OF AUSTRALIA

BOUCHARD & LYALL AND ANOR [2012] FamCA 766

FAMILY LAW – CHILDREN – With whom the children should spend time – where the children have lived with their respective fathers for some years – Where the children were removed from their mother’s primary care by the Department – Where there are serious concerns regarding the mother’s mental and emotional health – Where ongoing supervised time with the mother is appropriate – Whether the mother should be restrained from bringing further applications pursuant to Part VII without first obtaining leave – Where the proceedings have not been dismissed as frivolous or vexatious – Whether there is power otherwise to make the restraining order sought – Where it is not considered appropriate to make such a restraining order.

Family Law Act 1975 Part VII Division 12A, s60B, s 64B, s 60CA, s 60CC, s 61DA, s 65AA, s 65DAA, s 65L, s 69ZN, s 69ZQ, s 118

B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Preston v Preston [2011] FamCA 618
Heath v Hemming (No 2) [2011] FamCA 749
W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235; (2005) 34 Fam LR 129
Moose and Moose (2008) FLC 93-375
Rice and Asplund (1979) FLC 90-725
Vlug v Poulos (1997) FLC 92-778

APPLICANT: Ms Bouchard

1st RESPONDENT: Mr Lyall

2nd RESPONDENT: Mr West

INTERVENOR: Department of Human Services

INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

FILE NUMBER: MLC 6957 of 2010

DATE DELIVERED: 6 September 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: Forrest J

HEARING DATE: 6, 7 & 8 December 2011
REPRESENTATION

FOR THE APPLICANT: Ms Bouchard in Person

COUNSEL FOR THE 1ST RESPONDENT: Mr Barbayannis

SOLICITOR FOR THE 1ST RESPONDENT: McDonald Slater & Lay

COUNSEL FOR THE 2ND RESPONDENT: Ms Steiner

SOLICITOR FOR THE 2ND RESPONDENT: Lucy C Steiner

COUNSEL FOR THE INTERVENOR: Ms Buchanan

SOLICITOR FOR THE INTERVENOR:
Court Advocacy Unit

Department of Human Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

Orders
IT IS ORDERED
1.That all previous parenting orders and injunctions are discharged.

Parental Responsibility
2.(i) That the First Respondent father, Mr Lyall, shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended) (“the Act”)) in respect of the children, K born … June 1999 and T born … March 2002.
(ii)That the Second Respondent father, Mr West, shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children, M born … December 2005 and R born … September 2007.

Live With
3.(i) The children, K and T shall live with their father.
(ii) The children, M and R shall live with their father

Time with the Mother
4.(i) The children, K and T shall spend time with the mother as…

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 Bouchard and Lyall and Anor

Details

AGLC: BOUCHARD & LYALL AND ANOR [2012] FamCA 766
Case: [2012] FamCA 766
Decision Date: 6 September 2012

CaseChat Overview and Summary

In the matter of *Bouchard and Lyall and Anor*, Forrest J of the Family Court of Australia made orders concerning the parenting of four children. The dispute involved the mother and two fathers regarding the future care and responsibility for the children.

The court was required to determine the specific arrangements for parental responsibility, the children's living arrangements, and the extent and nature of the mother's time with the children. Additionally, the court considered issues relating to communication between the mother and children, travel arrangements, and the need for therapeutic assistance for the mother. The court also addressed the supervision of compliance with the orders and specific information exchange between the parents.

Forrest J ordered that all previous parenting orders and injunctions be discharged. The First Respondent father was granted sole parental responsibility for the children K and T, who were ordered to live with him. Similarly, the Second Respondent father was granted sole parental responsibility for the children M and R, who were also ordered to live with him. The mother's time with all four children was to be supervised, initially for two hours each fortnight, with provisions for private supervision should the initial arrangement cease. The court also imposed specific communication protocols, including telephone calls and restrictions on the mother discussing certain sensitive topics with the children or attending their schools without consent. Injunctions were also made against both parents regarding denigration of each other.

The court further ordered that the mother undertake psychotherapy, with the costs to be determined between her and the chosen therapist. The Independent Children's Lawyer was authorised to publish an account of the proceedings and to provide information to the mother's therapist. Compliance with the orders was to be supervised by a Family Consultant. The court also detailed specific information the fathers were to provide to the mother regarding the children's well-being and education. The Independent Children's Lawyer was discharged on a specified date, and all extant applications were dismissed.

Orders

Orders of the court

IT IS ORDERED

1. That all previous parenting orders and injunctions are discharged.

Parental Responsibility

2. (i) That the First Respondent father, Mr Lyall, shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended) (“the Act”)) in respect of the children, K born … June 1999 and T born … March 2002.

(ii) That the Second Respondent father, Mr West, shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children, M born … December 2005 and R born … September 2007.

Live With

3. (i) The children, K and T shall live with their father.

(ii) The children, M and R shall live with their father

Time with the Mother

4. (i) The children, K and T shall spend time with the mother as follows:

(a) for a period of 2 consecutive hours each fortnight, such time to be supervised by GordonCare Contact Centre in Suburb N with the father and the mother each paying no more than half of any costs levied by the centre in respect of the provision of the supervision, with arrangements for the payment or waiver of same to be made between each parent and the centre in respect of his and her share of those costs; and

(b) upon GordonCare Contact Centre being unable to continue to provide supervision of the children’s time with the mother, then a private supervisor shall be engaged to provide supervision for a period of 3 consecutive hours each second weekend.

(ii) The children, M and R shall spend time with the mother as follows:

5. The supervised time that the two sets of siblings spend with the mother pursuant to paragraphs 3 (i) (b) and (ii) (b) of these orders shall, unless otherwise agreed between the mother and the two fathers in writing:

(i) be undertaken with X Community Services;

(ii) take place at the same time;

(iii) be paid for by the mother and the two fathers in equal one-third shares;

(iv) commence each second weekend at the same time and place and finish at the same time and place as directed, in the very first instance, by the Independent Children’s Lawyer (“the ICL”) after she consults with each of the mother, the two fathers and X Community Services.

6. During the time that the two sets of siblings spend with the mother pursuant to paragraph 4 of these Orders, the mother shall comply with all reasonable directions of the supervisor.

Communication with the Mother

7. The mother shall communicate with all four children by telephone as follows:

(i) by calling K and T between 7:30 pm and 8:00 pm each Monday and Thursday, the duration of the calls to be no longer than thirty minutes and should the children not be available at home to take such a call when the mother rings then the father shall cause them to call the mother to speak with her for up to thirty minutes within 24 hours of the missed call.

(ii) by calling M and R between 7:00 pm and 7:30 pm each Monday and Thursday, the duration of the calls to be no longer than thirty minutes and should the children not be available at home to take such a call when the mother rings then the father shall cause them to call the mother to speak with her for up to thirty minutes within 24 hours of the missed call.

Injunctions

8. The mother is restrained from:

(i) denigrating either of the two fathers or any member of their families to or in the hearing or presence of the children;

(ii) discussing with the children or in the hearing or presence of the children, any court proceedings she is involved in;

(iii) discussing with the children or in the hearing or presence of the children, the issues of sexual abuse, self harm or suicide

(iv) attending at or communicating with any school or child care centre at which any of the children are enrolled without the prior written consent of that child’s father.

9. Each of the two fathers is restrained from:

(i) denigrating the mother or any member of their families to or in the hearing or presence of the children;

(ii) discussing with the children or in the hearing or presence of the children, any court proceedings he is involved in.

Passports and Travel

10. The First Respondent father is at liberty to apply for passports for the children K and T and, once obtained, to retain possession of such passports.

11. The Second Respondent father is at liberty to apply for passports for the children M and R and, once obtained, to retain possession of such passports.

12. The mother shall sign passport applications presented to her by the fathers and, to the extent that it might be required in order for passports for the children to issue, the Registrar of the Melbourne Registry of the Family Court of Australia is authorised pursuant to s106A of the Act to sign any passport application that the mother refuses to sign in lieu of the mother.

13. Each of the two fathers is at liberty to travel overseas with the children conditional upon providing the mother with at least 14 days notice in writing of the details of such travel including dates of departure and return and the proposed itinerary for such travel and making up, on return, any time the children have missed spending with the mother pursuant to the terms of these orders.

Therapeutic Assistance

14. The mother shall undertake a course of psychotherapy with any one of three psychologists and/or psychiatrists nominated by the ICL, payment of the costs of same to be a matter determined between the mother and the particular professional she chooses from the nominated three, the ICL to consider that issue when nominating the panel of three.

15. The duration and nature of the course of psychotherapy that the mother undertakes shall be determined by the mother and the particular therapist she chooses from the three nominated by the ICL but it is to be reportable in any future proceedings pursuant to the Act in respect of any of the children the subject of these Orders.

16. Once the mother has chosen the therapist from the ICL’s nominees, the mother shall notify the ICL of her choice and the ICL is authorised, pursuant to s 121(9)(g) of the Act, to publish an account of these proceedings including these Orders and the Reasons for Judgment delivered herewith, any affidavits filed herein, the reports of Dr D and Mr S and any of the reports of psychologists and psychiatrists previously obtained in respect of the mother to that nominated therapist.

Section 65L Supervision

17. Pursuant to Section 65L of the Family Law Act 1975:

(a) Compliance by the parties with the provisions of these Orders, as far as practicable, to be supervised by a Family Consultant of the Family Court of Australia Melbourne Registry as might be nominated by the Manager of Child Dispute Services, Family Court of Australia Melbourne Registry and, if possible, that Family Consultant is to be Mr S;

(b) The said Family Consultant shall give any party to these parenting Orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting Orders;

(c) The parties shall do all such things, sign all such documents, attend all such appointments, and ensure the children attend all such appointments, as are reasonably necessary for the purposes of same;

(d) The said Family Consultant shall, at his or her discretion, communicate with any person who is supervising the time that the children spend with the mother pursuant to these Orders with a view to monitoring compliance issues and potentially reporting to the Court on such matters if required in the future.

Specific Issues

18. Each of the two fathers shall:

(a) advise the mother and keep her advised of the landline telephone number at which the children are to be called by the mother for telephone communication;

(b) advise the mother in writing of decisions he has taken in respect of major-long term issues (as that term is defined in the Act) in respect of each of the children he has sole parental responsibility for;

(d) notify the mother as soon as reasonably practicable of any significant injury or serious illness suffered by any of the children in his care and, in any event, any injury or illness which requires specialist medical treatment or admission to hospital.

19. The mother shall comply with all reasonable directions of any therapist that any of the children are attending from time to time to participate in such therapy as required by the therapist.

Further Publication

20. The ICL is authorised, pursuant to s 121(9)(g) of the Act, to publish an account of these proceedings including these Orders and the Reasons for Judgment delivered herewith, to:

(i) GordonCare;

(ii) X Community Services;

(iii) Any other person responsible for supervising the time the children spend with their mother pursuant to these orders.

AND IT IS FURTHER ORDERED THAT

21. The ICL is discharged on 30 September, 2013.

22. All extant applications are otherwise dismissed and removed from the list of cases awaiting finalisation.

23. 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.

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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