Costello and Costello - [2016] FamCA 1113

FAMILY COURT OF AUSTRALIA

COSTELLO & COSTELLO

[2016] FamCA 1113

FAMILY LAW – CHILDREN – PARENTING – Where there is a trial of the father spending unsupervised time with the children – where supervision requirement by paternal grandparents continue, but thereafter cease – where fathers poor boundaries have now abated to the point where unsupervised time should be trialled – where father is to undergo fortnightly blood testing

Family Law Act 1975 (Cth) s 60CC

Jopson & Lilwall [2016] FamCAFC 262

APPLICANT:

Mr Costello

RESPONDENT:

Ms Costello

INDEPENDENT CHILDREN’S LAWYER:

Ms Gray

FILE NUMBER:

CSC

787

2014

DATE DELIVERED:

22 December 2016

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

6 December 2016

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Susan Gray

Orders

THAT BY CONSENT UNTIL FURTHER ORDER, THE ORDERS OF 12 APRIL 2016 ARE VARIED SO THAT:

The children are to spend time with the father from 8:00am each Monday until 4:30pm each Thursday.
The mother be permitted to take the children to Melbourne in the period between 4 and 10 January 2017, and in the event that she does so, then the father’s time which he would otherwise spend with the children under these orders is suspended.
Until Monday 2 January 2017, the supervision requirement by the paternal grandparents contained in Order 10 of the 12 April 2016 consent orders, should continue.
The father is to undergo fortnightly blood testing, and to produce the results of those blood tests to the Independent Children's Lawyer, so as to demonstrate that he remains compliant with his medication regime.
B (born … 2003) is permitted to attend upon a counsellor of the mother’s choosing, and the parties are to do all things necessary to facilitate her attendance.

AND IT IS FURTHER ORDERED THAT:

On and from 2 January 2017, the supervision requirement contained in Order 10 of the Orders of 12 April 2016 cease to apply to the time the children spend with the father.
Changeovers of the children are to take place at McDonalds F Town.

AND IT IS FURTHER ORDERED BY CONSENT THAT:

A Child Inclusive Conference be conducted at 9:00am on Wednesday 25 January 2017 in Cairns and a report of that conference be provided to the parties.
The further hearing of this matter be adjourned to 2:00pm on Monday 13 February 2017 in Cairns.

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 Costello & Costello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law…

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 Costello and Costello

Details

AGLC: Costello and Costello [2016] FamCA 1113
Case: [2016] FamCA 1113
Decision Date: 22 December 2016

CaseChat Overview and Summary

In the matter of Costello and Costello, Tree J of the Family Court of Australia considered an application to vary existing consent orders concerning the time spent by children with their parents. The dispute centred on the arrangements for the children's care, including specific periods of time with each parent, parental travel, supervision requirements, and the father's compliance with a medication regime.

The court was required to determine the terms of varied orders that would govern the children's time with each parent, including provisions for travel to Melbourne and the continuation or cessation of supervision by paternal grandparents. Further issues included the father's obligation to undergo blood testing to demonstrate compliance with his medication, and the facilitation of counselling for one of the children. The court also had to address the location for changeovers and the scheduling of a Child Inclusive Conference and a further hearing.

Tree J, by consent of the parties, made a series of orders varying the previous arrangements. These included specific times for the children to spend with the father, permission for the mother to take the children to Melbourne during a specified period with a suspension of the father's time, and the continuation of supervision by paternal grandparents until a set date. The father was ordered to undergo fortnightly blood testing to confirm adherence to his medication regime, and the mother was permitted to arrange counselling for one child. Supervision by the paternal grandparents was to cease from a specified date, and changeovers were to occur at a designated location. The court also ordered a Child Inclusive Conference and adjourned the matter for a further hearing.

Orders

Orders of the court

THAT BY CONSENT UNTIL FURTHER ORDER, THE ORDERS OF 12 APRIL 2016 ARE VARIED SO THAT:

The children are to spend time with the father from 8:00am each Monday until 4:30pm each Thursday.

The mother be permitted to take the children to Melbourne in the period between 4 and 10 January 2017, and in the event that she does so, then the father’s time which he would otherwise spend with the children under these orders is suspended.

Until Monday 2 January 2017, the supervision requirement by the paternal grandparents contained in Order 10 of the 12 April 2016 consent orders, should continue.

The father is to undergo fortnightly blood testing, and to produce the results of those blood tests to the Independent Children's Lawyer, so as to demonstrate that he remains compliant with his medication regime.

B (born … 2003) is permitted to attend upon a counsellor of the mother’s choosing, and the parties are to do all things necessary to facilitate her attendance.

AND IT IS FURTHER ORDERED THAT:

On and from 2 January 2017, the supervision requirement contained in Order 10 of the Orders of 12 April 2016 cease to apply to the time the children spend with the father.

Changeovers of the children are to take place at McDonalds F Town.

AND IT IS FURTHER ORDERED BY CONSENT THAT:

A Child Inclusive Conference be conducted at 9:00am on Wednesday 25 January 2017 in Cairns and a report of that conference be provided to the parties.

The further hearing of this matter be adjourned to 2:00pm on Monday 13 February 2017 in Cairns.

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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