Conrad and Killen - [2017] FamCA 737

FAMILY COURT OF AUSTRALIA

CONRAD & KILLEN

[2017] FamCA 737

FAMILY LAW – CHILDREN – where allegations are made by the mother against the paternal grandmother and pursued to the point that the father’s time with child is affected – where mother retracts allegations and apologises – where the more pressing issue is the experts’ views about mother’s attachment to the child – urgency in changing residence.

Family Law Act 1975 (Cth)

Donaghey & Donaghey [2011] FamCA 13
M v M (1988) 166 CLR 69
Napier v Hepburn [2006] FamCA 1316; (2006) 36 Fam LR 395
R & C [1993] FamCA 62

APPLICANT:

Mr Conrad

RESPONDENT:

Ms Gillen

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

1582

2015

DATE DELIVERED:

22 September 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

12. 13, 14, 15 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickson QC

SOLICITOR FOR THE APPLICANT:

Carew Counsel

COUNSEL FOR THE RESPONDENT:

Ms Burt

SOLICITOR FOR THE RESPONDENT:

Westminster
Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

MS BURT

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Boymal

Victoria Legal Aid

Orders

That all parenting orders relating to B are discharged.
That the father have sole parental responsibility for major long term decisions relating to the child.
That the child live with the father.
That unless the parents agree otherwise, the child spend time with the mother as follows:
(a)For each of the weekends commencing Saturday 23 September 2017 and ending on Sunday 5 November 2017, on each of the Saturday and the Sunday from 10.00am to 5.00pm on each day; and
(b)During each alternate weekend commencing Friday 17 November 2017 from 3.30pm on the Friday (from the father’s nominated kindergarten, day care or school) until 9.00am on the following Monday (to the kindergarten, day care of school).
Until and including 5 November 2017, all changeovers take place at the C Store, Suburb D supervised by the family contact service at the joint expense of the parties.
That in respect of the mother’s time and communication with the child, in addition to that set out in paragraph (4) hereof, and specifically concerning special occasions, that time may be as agreed in writing or in a parenting plan.
That the order for the appointment of the Independent Children’s Lawyer is discharged.
That 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.
That all applications are otherwise dismissed save as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Conrad & Killen has been approved by the Chief Justice…

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 Conrad and Killen

Details

AGLC: Conrad and Killen [2017] FamCA 737
Case: [2017] FamCA 737
Decision Date: 22 September 2017

CaseChat Overview and Summary

In *Conrad and Killen*, heard before Cronin J, the dispute concerned parenting orders for a child named B. The court was required to determine the future parenting arrangements for B, including issues of parental responsibility, living arrangements, and time spent with each parent.

The court's reasoning focused on establishing orders that were in the best interests of the child. This involved making determinations regarding sole parental responsibility for major long-term decisions, the child's primary residence, and the specific arrangements for the child to spend time with the mother. The court also addressed the supervision of changeovers and the inclusion of a fact sheet detailing obligations and consequences of contravention, as permitted by sections 65DA(2) and 62B of the relevant legislation.

The court ordered the discharge of all existing parenting orders relating to B. The father was granted sole parental responsibility for major long-term decisions and the child was ordered to live with him. The mother was granted specific periods of time with the child, including supervised changeovers until a certain date, and alternate weekends thereafter. The appointment of an Independent Children's Lawyer was discharged, and all other applications were dismissed, save for costs.

Orders

Orders of the court

That all parenting orders relating to B are discharged.

That the father have sole parental responsibility for major long term decisions relating to the child.

That the child live with the father.

That unless the parents agree otherwise, the child spend time with the mother as follows:

(a) For each of the weekends commencing Saturday 23 September 2017 and ending on Sunday 5 November 2017, on each of the Saturday and the Sunday from 10.00am to 5.00pm on each day; and

(b) During each alternate weekend commencing Friday 17 November 2017 from 3.30pm on the Friday (from the father’s nominated kindergarten, day care or school) until 9.00am on the following Monday (to the kindergarten, day care of school).

Until and including 5 November 2017, all changeovers take place at the C Store, Suburb D supervised by the family contact service at the joint expense of the parties.

That in respect of the mother’s time and communication with the child, in addition to that set out in paragraph (4) hereof, and specifically concerning special occasions, that time may be as agreed in writing or in a parenting plan.

That the order for the appointment of the Independent Children’s Lawyer is discharged.

That 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.

That all applications are otherwise dismissed save as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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