Cann and Beacon and Ors - [2017] FCCA 3196

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANN & BEACON & ORS

[2017] FCCA 3196

Catchwords:
FAMILY LAW – Application for parenting orders for a two year old girl – allegations of controlling family violence by father – held the father has engaged in and will likely continue to engage in controlling family violence toward mother – allegations of risk to child by mother due to her own history of sexual abuse and acute mental health episodes – held allegations unsubstantiated and mother’s mental health is stable – held that there is an unacceptable risk of psychological harm to the child in the father’s home due to father’s negative views of mother’s parental capacity – held presumption of equal shared parental responsibility should not apply due to high level of parental conflict and family violence – orders made.

FAMILY LAW – Application for parenting orders for a four year old boy of same mother – maternal grandmother seeks time with child – parents and ICL oppose – mother and maternal grandmother estranged – maternal grandmother holds negative views of mother’s parenting capacity – held not in best interests of child to make orders for maternal grandmother to spend time with child other than by written consent of parents.

Legislation:

Family Law Act 1975 (Cth), ss.4AB(1), 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 65DAC, 68L, pt.VII

Cases cited:

Champness & Hanson [2009] FamCAFC 96

Collu & Rinaldo [2010] FamCAFC 53

G & C [2006] FamCA 994
Goodridge & Beadle [2017] FCCA 3219
Tait & Densmore [2007] FamCA 1383

Applicant:

MR CANN

First Respondent:

MS BEACON

Second Respondent:

MS A BEACON

Third Respondent:

MR STANLEY

File Number:

MLC 3906 of 2016

Judgment of:

Judge Jones

Hearing dates:

1-4 August 2017 & 25-26 October 2017

Date of Last Submission:

16 November 2017

Delivered at:

Melbourne

Delivered on:

22 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr Maddox

Solicitors for the Applicant:

Legal Aid NSW

Counsel for the First Respondent:

Mr Turner

Solicitors for the First Respondent:

Battiato & Associates Lawyers Pty Ltd

Counsel for the Second Respondent:

Mr Blank

Solicitors for the Second Respondent:

Toner & May Legal

The Third Respondent appeared in person.

Counsel for the Independent Children’s Lawyer:

Ms Dart

Solicitors for the Independent Children’s Lawyer:

Tarella Law

ORDERS

The Mother and the Father have equal shared parental responsibility for the child X born (omitted) 2012 (“X”).
X live with the Mother.
X spend time with the Father as agreed between the parents from time to time.
The Maternal Grandmother spend time and communicate with X only with the prior written consent of both parents.

All previous parenting orders be discharged.
The Mother have sole parental responsibility for the child Y born (omitted) 2015 (“Y”).
The Mother is to notify the Father in writing of any decision made in the exercise of parental responsibility by email, as soon as practicable, but no later than 14 days after she has made the decision.
Y live with the Mother.
Commencing 23 December 2017, the…

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 Cann and Beacon and Ors

Details

AGLC: Cann and Beacon and Ors [2017] FCCA 3196
Case: [2017] FCCA 3196
Decision Date: 22 December 2017

CaseChat Overview and Summary

This matter concerned applications for parenting orders for two children, referred to as X and Y. In relation to child X, the father alleged controlling family violence by the mother, while the mother alleged risks to the child due to the father's negative views of her parenting capacity. In relation to child Y, the maternal grandmother sought time with the child, which was opposed by the parents and the Independent Children's Lawyer (ICL), with the mother and grandmother estranged and the grandmother holding negative views of the mother's parenting.

The court was required to determine whether the presumption of equal shared parental responsibility should apply to child X, given the allegations of family violence and parental conflict. It also needed to assess the risk of psychological harm to child X in the father's care. For child Y, the central issue was whether it was in his best interests to make orders for the maternal grandmother to spend time with him, considering the estrangement between the mother and grandmother and the grandmother's views.

The court found that the father had engaged in and was likely to continue to engage in controlling family violence towards the mother. It also found that allegations of risk to child X by the mother due to her mental health history were unsubstantiated and that her mental health was stable. The court determined that there was an unacceptable risk of psychological harm to child X in the father's home due to his negative views of the mother's parental capacity. Consequently, the presumption of equal shared parental responsibility was not applied to child X due to the high level of parental conflict and family violence. For child Y, the court held that it was not in his best interests to make orders for the maternal grandmother to spend time with him, other than by the written consent of both parents.

The court made orders for child X that included equal shared parental responsibility, that X live with the mother, and that X spend time with the father as agreed between the parents. For child Y, the court discharged previous orders and granted the mother sole parental responsibility, with specific provisions for Y to live with the mother and for the father to spend time and communicate with Y, subject to conditions including the father engaging in psychological therapy. The maternal grandmother was ordered to spend time and communicate with Y only with the prior written consent of both parents.

Orders

Orders of the court

The Mother and the Father have equal shared parental responsibility for the child X born (omitted) 2012 (“X”).

X live with the Mother.

X spend time with the Father as agreed between the parents from time to time.

The Maternal Grandmother spend time and communicate with X only with the prior written consent of both parents.

All previous parenting orders be discharged.

The Mother have sole parental responsibility for the child Y born (omitted) 2015 (“Y”).

The Mother is to notify the Father in writing of any decision made in the exercise of parental responsibility by email, as soon as practicable, but no later than 14 days after she has made the decision.

Y live with the Mother.

Commencing 23 December 2017, the Father spend time with Y as agreed between the parents, but in default of agreement as follows:

(a) for a period of three months following the making of these Orders:

(i) from 10am to 5pm each Friday; and

(ii) from 10am to 4pm on Christmas Eve in 2017;

(b) from the conclusion of Order 9(a) herein and until 1 July in the year before Y commences primary school, and being conditional upon the Father’s compliance with Order 13 herein:

(i) from 10am Friday to 10am Saturday each week; and

(ii) from 10am to 4pm on Father’s Day;

(i) from 5pm on Christmas Eve to 2pm on Christmas Day in odd-numbered years; and

(ii) from 2pm on Christmas Day to 10am on Boxing Day in even-numbered years;

(d) commencing 1 July in the year prior to Y commencing primary school, each alternate weekend from 3.30pm or the conclusion of day-care or pre-school on Friday, to 10am or the commencement of day-care or pre-school on Monday; and

(e) upon Y commencing primary school:

(i) each alternate weekend from the conclusion of school (or 5pm if it is not a day which Y attends school) on Friday to the commencement of school on Monday, with such time to be extended to Tuesday in the event that Monday is a public holiday or pupil free day, with such time to be suspended during school holiday periods and recommence on the first weekend of each new school term;

(ii) for the first week of the school holidays commencing from the conclusion of school on the last day of the school term until 5pm on the second Saturday thereafter; and

(iii) for alternate weeks of the Christmas school holiday period as follows:

(A) the holiday period is taken to commence at the conclusion of school on the last day of school and conclude at 4pm on the last Friday prior to the new school year;

(B) Y shall be with the mother for the first week in even years and with the father for the first week in odd years; and

10.

Upon Y commencing primary school and notwithstanding any Order to the contrary, Y shall spend the following special occasions in the care of each parent:

(a) with the Father from 5pm Christmas Eve to 10am Boxing Day in odd numbered years;

(b) with the Mother from 5pm Christmas Eve to 10am Boxing Day in even numbered years;

(c) Y shall not be in the Father’s care on a weekend that includes Mother’s Day. If Y is due to be in the Father’s care that weekend pursuant to these Orders, he is to be with her on the following weekend in lieu; and

(d) Y shall not be in the Mother’s care on a weekend that includes Father’s Day. If Y is due to be in the Mother’s care that weekend pursuant to these orders, she is to be with her on the following weekend in lieu.

11.

Commencing on the Wednesday after Order 9(b) herein comes into effect, the Father communicate with Y by telephone or Skype as agreed between the parents, or in the absence of agreement, on Wednesday each week between 6pm and 6.30pm, provided that:

(a) until Y commences primary school, the Mother shall initiate the communication by telephoning the Father’s mobile phone, landline or Skype account, and the Mother shall monitor the communication to ensure that the Father’s communication with Y is appropriate;

(b) after Y commences primary school, Y shall initiate the communication and, so far as possible, communicate with the Father in her bedroom or other private space; and

(c) where Y has a school or extracurricular activity on the Wednesday evening, communication shall take place on the Tuesday of that week.

12.

For the purposes of changeover:

(a) prior to Y commencing school, all changeover is to occur at Y’s day-care or pre-school, and in the event that Y is not attending day-care or pre-school on a particular day, changeover occur by the parents meeting at the (omitted) Police Station; and

(b) once Y commences school, all changeover will occur at Y’s school, and in the event that Y is not attending school on a particular day, then changeover occur by the parents meeting at the (omitted) Police Station.

13.

The Father forthwith do all acts and things necessary to engage with a psychologist for the purpose of therapy to address parenting issues and concerns raised in the family report, and for this purpose:

(a) the Father to advise the Independent Children’s Lawyer (“the ICL”) of the name of the psychologist engaged by him and that the ICL have leave to provide a copy of the family report, Final Orders and the reasons for judgment to such psychologist;

(b) Y’s time and communication in Orders 9(b), (c), (d), 10 and 11 herein is conditional upon the Father’s engagement with the psychologist at such frequency and duration as recommended by the psychologist, and that in the event of any non-compliance, Y’s time with the Father shall remain as provided for at Order 9(a) herein; and

(c) the Father to do all acts and things necessary to provide the psychologist with an irrevocable authority to provide information to the ICL as to the dates of the Father’s attendance at therapy and whether he is complying with any recommendations made with respect to his frequency of his attendance.

14.

The Mother is to ensure that the Father’s name is included as a parent on any day-care, pre-school or school enrolment for Y.

15.

The Mother authorise the day-care, pre-school or school to provide to the Father, at his request and expense, all school reports, newsletters and other communications distributed to parents.

16.

The Mother shall advise the Father of the details of Y’s medical practitioner and any other health professional that Y attends upon.

17.

Each parent advise the other of any medical emergency involving Y, as soon as reasonably practicable.

18.

Each parent be, and hereby are, restrained by injunction from consuming marijuana or any other illicit or illegal substance.

19.

Each parent advise the other in writing of any change in their contact details, including residential address and mobile telephone number, within 48 hours of the change occurring.

20.

For a period of two years following the making of these Orders:

(a) the Mother attend upon her general practitioner not less than once every two months for the purpose of reviewing her mental health and any medication prescribed; and

(b) the Mother to comply with all recommendations of her general practitioner with respect to:

(i) attendance upon a psychiatrist;

(ii) attendance upon a psychologist or counsellor; and/or

(iii) prescribed medication;

(c) the Mother do all acts and things necessary to provide her treating general practitioner with an irrevocable authority to provide information to the ICL as to the dates of her attendance and her compliance with any recommendations made.

21.

The ICL have leave to provide to the Mother’s general practitioner:

(a) a copy of these Orders; and

(b) the report of Dr A dated 11 February 2016.

22.

Within seven days of the date of these Orders, the Mother shall provide the name and contact details of her general practitioner to the ICL.

23.

The Mother and Father be, and hereby are, restrained by injunction from:

(i) physically disciplining Y or permitting any other person to do so;

(ii) from saying negative, derogatory or mean things about the other parent, their family or partner in the presence or hearing of Y, or permitting any other person to do so.

24.

The parents use a communication book to exchange information regarding Y.

25.

Pursuant to s.68L of the Family Law Act 1975 (Cth) (“the Act”), the appointment of the ICL be extended for a period of six months from the making of these Orders for the purpose of assisting with the implementation of Orders.

26.

Pursuant to s.65DA(2) of the Act, 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 Attachment A hereto and these particulars are included in these orders.

NOTATION

A. Pursuant to s.62B of the Act, information about courses, programs and services to help with adjusting to the consequences of those Orders are set out in Attachment A.

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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