Cooper and Miller - [2016] FamCA 257

FAMILY COURT OF AUSTRALIA

COOPER & MILLER

[2016] FamCA 257

FAMILY LAW – CHILDREN – final orders – where the mother seeks orders for equal shared parental responsibility for the child but for the child’s time with the father to be supervised until 2019 and conditional upon the father completing a number of courses and assessments – where the father seeks orders for sole parental responsibility and for the child’s time with the mother to be liberal – where there are allegations of sexual and physical abuse perpetrated by the father – where there are allegations of psychological abuse perpetrated by the mother – where both parties seek a finding of unacceptable risk – where consideration is given to the weight attributed to the evidence of the family consultant – where the Court finds that the mother’s allegations are without foundation and the father does not present any risk to the child – where the Court finds that the mother poses a risk of psychological and emotional harm to the child by her ongoing hostility towards the father – where orders are made in relation to parental responsibility and for the child to live with the father but spend substantial and significant time with the mother.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT

Andrew & Delaine [2009] FamCAFC 182
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Mazorski & Albright (2007) 37 Fam LR 518
M v M (1988) 166 CLR 69
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Cooper

RESPONDENT:

Mr Miller

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

4728

2012

DATE DELIVERED:

22 April 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

29 & 30 June 2015, 1 & 2 July 2015, 5 August 2015, 21, 22, 23, 24 December 2015 and 28 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

Southern Community Justice Centre

COUNSEL FOR THE RESPONDENT:

Mr Lindsay

SOLICITOR FOR THE RESPONDENT:

Black & Wood Divorce & Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

That the parties have shared parental responsibility for the child B born … 2009 (“the child”).
That the father have sole parental responsibility in respect of matters relating to education and health issues affecting the child.
That in respect of education and health issues affecting the child, the father will advise the mother in writing (electronically or otherwise) and provide his views about any major issues affecting the child’s education and health; and shall consult with the mother about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties THEN the father shall make the final decision and advise the mother in writing (electronically or otherwise) of that decision.
That the child shall live with…

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 Cooper and Miller

Details

AGLC: Cooper and Miller [2016] FamCA 257
Case: [2016] FamCA 257
Decision Date: 22 April 2016

CaseChat Overview and Summary

In the matter of *Cooper and Miller*, Berman J determined orders concerning the parental responsibility and living arrangements for the child B. The dispute involved the parents' differing views on how to manage their child's upbringing, particularly concerning education and health, and the practicalities of the child's time with each parent.

The court was required to determine the extent of shared parental responsibility, specifically in relation to the child's education and health. Further, the court needed to establish the primary residence of the child and the specific arrangements for the child's time with the non-resident parent, including provisions for communication, handovers, and the exchange of information. The court also had to consider and make orders regarding allegations of abuse and the communication of proceedings.

Berman J ordered that the parties share parental responsibility for the child, with the father having sole responsibility for decisions regarding education and health. In these specific areas, the father was to consult with the mother but retained the final decision-making power if agreement could not be reached. The child was ordered to live with the father, with detailed provisions outlining the child's time with the mother during school terms and holidays, including specific arrangements for birthdays and Mother's Day. The court also made orders regarding communication between the child and parents, the location of handovers, the exchange of medical and school information, and attendance at school functions. Crucially, the mother was restrained by injunction from reporting allegations of abuse to certain parties, from recording disclosures by the child, and from discussing the proceedings with the child or third parties, with specific exceptions. Both parents were also restrained from removing the child from Australia or obtaining a passport without consent.

Orders

Orders of the court

That the parties have shared parental responsibility for the child B born … 2009 (“the child”).

That the father have sole parental responsibility in respect of matters relating to education and health issues affecting the child.

That in respect of education and health issues affecting the child, the father will advise the mother in writing (electronically or otherwise) and provide his views about any major issues affecting the child’s education and health; and shall consult with the mother about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties THEN the father shall make the final decision and advise the mother in writing (electronically or otherwise) of that decision.

That the child shall live with the father.

That the child shall spend time with the mother as follows:

(a) during school terms, each alternate weekend from the conclusion of school Thursday (or 4pm if a non-school day) until the commencement of school Tuesday (or 9am if a non-school day) PROVIDED that this order shall be suspended during periods of school holidays but shall recommence in its operation on the first weekend of each new school term;

(b) during each of the April, July and September/October school holidays from the conclusion of school on the last day of term until 5pm on the middle Saturday of the said holidays;

(i) in 2016/2017 for the first half thereof commencing from the conclusion of school on the last day of term until 5 pm on the mid-point of the holidays and for the same period in each alternate year thereafter;

(ii) in 2017/2018 for the second half thereof commencing at 5pm on mid-point of the holidays and concluding at 5 pm on the last Sunday of the holidays and for the same period in each alternate year thereafter;

PROVIDED THAT paragraph 5 c (i) of the within order be suspended from 9 am on 26 December until 9 am on 28 December in 2016 and each alternate year thereafter;

(d) from 9 am on Christmas Eve until 9 am on Boxing Day in 2017 and each alternate year thereafter;

(e) on the child’s birthday being …, in each year if the child is not in the care of the mother:

(i) if the birthday falls on a school day THEN from the conclusion of school until 6pm;

(ii) if the birthday on a weekend THEN from 9 am until 1 pm; PROVIDED THAT in the event that the child’s birthday shall fall on a day when she is in the care of the mother THEN the mother’s time shall be suspended and the child shall return to the father’s care as follows:

A. if a school day, from the conclusion of school until 6 pm on the said child’s birthday;

B. if a non-school day, from 9 am until 1 pm on the said child’s birthday;

(f) On Mother’s Day in each year from 4pm on the Saturday immediately preceding Mother’s Day until 6 pm on Mother’s Day PROVIDED that in the event that Father’s Day shall fall on a day that the child is in the care of the mother THEN the time that the child spends with the mother shall be suspended and the child shall return to the father’s care from 4 pm on Saturday before Father’s Day until 6 pm on Father’s Day.

That in the event that the said child is to be with the father on the birthday of J born … 2000 (“J”) THEN the father’s time shall be suspended and the child shall return to the mother’s care from the conclusion of school (or 9 am if a non-school day) on 11 September until the commencement of school (or 9 am if a non-school day) on 12 September.

Whilst the said child is in the care of each party she shall have telephone communication with the other party at reasonable times and in the event that the said child does not spend time with either party for a period of seven (7) days each party shall facilitate such telephone communication on not less than one (1) occasion during that seven (7) day period at times to be agreed between the parties but in default of agreement at 7 pm on the Tuesday of that seven (7) day period.

That all handovers which do not take place at the child’s school shall take place at such locations as may be agreed between the parties, but in default of agreement at the McDonald’s Restaurant, K Town.

That each party do advise the other as soon as is practicable of any serious accident or illness suffered by the child including the name of any treating health professional and the details of any diagnosis, prognosis and treatment.

10.

That the mother be at liberty to obtain direct from the child’s treating health professionals information as to the child’s medical condition including any diagnosis, prognosis and proposed treatment.

11.

That the father will do all things necessary to authorise the child’s school to provide copies of reports, photographs (at the expense of the mother), newsletters, any other information in relation to the said child’s progress as they may require from time to time and is consistent with the reasonable obligations of the said school to provide same.

12.

That each party be able to attend all school functions, school and extra- curricular performances and special occasions in which parental involvement is usually encouraged including sports, parent-teacher interviews and presentations.

13.

That the mother is restrained and an injunction granted restraining her from:

(a) reporting any allegation of abuse by the father in respect of the said child to any person or organisation SAVE AND EXCEPT:

(i) South Australian Police;

(ii) Child Protection Services;

(iii) Families SA;

(b) personally videotaping or otherwise recording any alleged disclosure of abuse by the child or allowing any third party to do so SAVE AND EXCEPT for any authorised employee or officer of SAPOL, Child Protection Services or Families SA if undertaken in the course of an investigation;

(c) discussing these proceedings or any issues or allegations raised in these proceedings with or in the presence of the said child or from allowing any other person to do so including J;

(d) discussing these proceedings or any issues or allegations raised in these proceedings with any other person or entity including but not limited to the said child’s school, staff or any care provider to the said child, extra-curricular co-ordinators or teacher;

(e) allowing or permitting the said child to attend upon any psychologist, counsellor or any other mental health practitioner or social worker without first obtaining the father’s written consent.

14.

That each party be and are hereby restrained by injunction from removing the child from the Commonwealth of Australia without the prior written consent of the other party or further order of the Court, or from obtaining or causing the issue of a passport for the said child without first obtaining the written consent of the other party.

15.

That the order appointing the Independent Children’s Lawyer be discharged.

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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