Cameron and Allard - [2016] FCCA 22

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMERON & ALLARD

[2016] FCCA 22

Catchwords:
FAMILY LAW – Parenting orders – where father suffers from mental illness – whether risk of harm if children’s time unsupervised – expert psychiatric evidence – weight issues – where the father may not be accurately presenting the facts to his treating doctors – where father became obsessed with the litigation – whether the father is at risk of murder/suicide – where supervised time ordered.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60I, 61DA, 65DAA

Family Law (Family Dispute Resolution Practitioners) Regulations 2008, reg.25(2)

MRR v GR [2010] HCA 4
Rastall & Ball & Ors [2010] FMCAfam 1290

Applicant:

MS CAMERON

Respondent:

MR ALLARD

File Number:

SYC 2612 of 2010

Judgment of:

Judge Altobelli

Hearing date:

16 December 2015

Date of Last Submission:

18 December 2015

Delivered at:

Wollongong

Delivered on:

28 January 2016

REPRESENTATION

Counsel for the Applicant:

Mr Alexander

Solicitors for the Applicant:

Verekers Lawyers

The Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Ms Reynolds

Solicitors for the Independent Children's Lawyer:

Lukes Law

ORDERS

That all previous parenting Orders be discharged.
That the Mother have sole parental responsibility for the Children, X born (omitted) 2000 (“X”), Y born (omitted) 2005 (“Y”) and Z born (omitted) 2007 (“Z”)
That the Children live with the Mother.
That the Child X spend time with his father in accordance with the Child's express wishes.
That the Children Y and Z spend supervised time with the Father as follows:
(a)From 11:00am until 6:00pm each alternate Saturday;
(b)On Father's Day from 10:00 am until 4:00pm each year;
(c)From 1:00 pm until 4:00 pm on Christmas Day each year;
(d)At other times as agreed between the parties.
and for the purpose of Order 5 above, such time is to be supervised by the paternal grandparents MS B and MR A, or such other agreed supervisor, and time take place at the residence of the paternal grandparents or such other venue as agreed with the Mother.
That for the purpose of changeover the parents will meet at the paternal grandparent's home for the return and collection of the Children.
That the Father undertake an Anger Management Course within 3 months of these Orders and provide to the solicitor for the Mother and the Independent Children's Lawyer evidence of attendance and completion of the course.
That the Father engage in Dialectical Behavioural Therapy Treatment with a suitably qualified psychologist and/or psychiatrist for a period of 24 months or longer as recommended by his treating psychiatrist to address his emotional regulation difficulties and the impact on his behaviour of his diagnosis of Borderline Personality Disorder.
That the Father engage and complete a Post Separation Parenting Course within 6 months of these Orders and provide written evidence of satisfactory completion to the solicitor for the Mother and the Independent Children's Lawyer.
That the paternal grandparents (and any other supervisor who is undertaking supervision for the purpose of Order 5) sign Undertakings…

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 Cameron and Allard

Details

AGLC: Cameron and Allard [2016] FCCA 22
Case: [2016] FCCA 22
Decision Date: 28 January 2016

CaseChat Overview and Summary

In *Cameron and Allard*, heard before Judge Altobelli, the court was tasked with determining parenting orders concerning three children, X, Y, and Z. The dispute involved the allocation of parental responsibility, living arrangements, and the nature and extent of time the children would spend with their father, given concerns raised about his behaviour and its impact on the children.

The central legal issues before the court were how to best promote the children's welfare and best interests, particularly in light of the father's diagnosed Borderline Personality Disorder and associated emotional regulation difficulties. This included determining the appropriate level of parental responsibility for each parent, establishing suitable living arrangements for the children, and defining the conditions under which the father could spend time with them, including the necessity for supervision and specific therapeutic interventions for the father.

Judge Altobelli reasoned that the children's welfare and best interests necessitated a significant shift in parental responsibility and time arrangements. The court ordered that the mother have sole parental responsibility and that the children live with her. The father's time with the children was substantially restricted and made conditional upon his undertaking an anger management course, engaging in dialectical behavioural therapy for at least 24 months, completing a post-separation parenting course, and abstaining from alcohol and illegal drugs during and before his time with the children. Time with the younger children, Y and Z, was to be supervised by the paternal grandparents or another agreed supervisor, with specific provisions for changeovers and communication between the parents regarding the children's welfare. The court also made orders restraining both parents from denigrating each other in the children's presence and outlined conditions for suspending the father's time if he relapsed into alcohol use and placed the children at significant risk.

Orders

Orders of the court

That all previous parenting Orders be discharged.

That the Mother have sole parental responsibility for the Children, X born (omitted) 2000 (“X”), Y born (omitted) 2005 (“Y”) and Z born (omitted) 2007 (“Z”)

That the Children live with the Mother.

That the Child X spend time with his father in accordance with the Child's express wishes.

That the Children Y and Z spend supervised time with the Father as follows:

(a) From 11:00am until 6:00pm each alternate Saturday;

(b) On Father's Day from 10:00 am until 4:00pm each year;

(d) At other times as agreed between the parties.

and for the purpose of Order 5 above, such time is to be supervised by the paternal grandparents MS B and MR A, or such other agreed supervisor, and time take place at the residence of the paternal grandparents or such other venue as agreed with the Mother.

That for the purpose of changeover the parents will meet at the paternal grandparent's home for the return and collection of the Children.

That the Father undertake an Anger Management Course within 3 months of these Orders and provide to the solicitor for the Mother and the Independent Children's Lawyer evidence of attendance and completion of the course.

That the Father engage in Dialectical Behavioural Therapy Treatment with a suitably qualified psychologist and/or psychiatrist for a period of 24 months or longer as recommended by his treating psychiatrist to address his emotional regulation difficulties and the impact on his behaviour of his diagnosis of Borderline Personality Disorder.

That the Father engage and complete a Post Separation Parenting Course within 6 months of these Orders and provide written evidence of satisfactory completion to the solicitor for the Mother and the Independent Children's Lawyer.

10.

That the paternal grandparents (and any other supervisor who is undertaking supervision for the purpose of Order 5) sign Undertakings in a form prepared by the Independent Children’s Lawyer detailing the nature of their supervision and circumstances of suspension of the Father's time.

11.

That the Father be restrained from consuming any alcohol during periods of time he spends with the Children and for a period of 12 hours before such time is scheduled to commence with the Children.

12.

That the Father be restrained from consuming or being under the influence or any illegal drugs during any time that the Children are in his care or for the preceding twelve hours, and shall immediately removing the Children from the presence of any other person who is under the influence of illegal drugs.

13.

That both parents are restrained from denigrating the other parent or denigrating these proceedings in the presence or hearing of the Children or in a manner which causes it to be brought to the Children's attention.

14.

That if the Father relapses into the use of alcohol and as a consequence places the children at significant risk of harm then all time between him and the Children be suspended pending the provision of a psychiatric report from his treating psychiatrist that outlines that the psychiatrist has formed the opinion that the Father is stable and no longer poses a significant risk of harm to the children.

15.

That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:

(a) any medical problems or illness suffered by the Children, whilst in the care of the Father;

(b) any medication that has been prescribed for the children;

(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

(d) any social, school or religious functions which the children is to attend;

(e) the residential address of the Father;

(f) the telephone contact number of the Father;

(g) any other matter relevant to the welfare of the children.

16.

That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:

(a) any serious medical problems or serious illness suffered by the children, whilst in the care of the Mother;

(b) any medication that has been prescribed for the Children;

(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

(d) the residential address of the Mother;

(e) the telephone contact number of the Mother.

17.

That within 7 days the Independent Children’s Lawyer provide to the paternal grandparents a copy of these reasons for judgment, the report by Dr C and the report by Dr S and, if requested by them, meet with them to discuss these reasons for judgment.

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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