CRIBB & LANKESTER - [2017] FCCA 1629

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRIBB & LANKESTER

[2017] FCCA 1629

Catchwords:
FAMILY LAW – Children – child found to be at unacceptable risk of emotional harm in primary care of mother – change of residence to father – sole parental responsibility order in favour of father – moratorium on mother’s time with child for 6 months followed by supervised time with mother for 12 months.

Legislation:

Family Law Act 1975, pt.VII, ss.60B, 60CA, 60CC, 65D, 65DA, 61DA, 61(4), 65DAA, 4, 4AB, 121.

Cases cited:

Baghti & Baghti& Ors [2015] FamCAFC 71
Goode & Goode (2006) FLC 93-286
MRR v GR [2010] HCA 4
Webber & Bud (No.2) [2011] FamCA 539
Galvin v The Queen [2006] NSWCCA 66
R v Sutseki [2002] 56 NSWLR 82
Papakosmos v The Queen (1999) 196 CLR 297

Applicant:

MR CRIBB

Respondent:

MS LANKESTER

File Number:

BRC 11371 of 2010

Judgment of:

Judge Purdon-Sully

Hearing dates:

23, 25 August 2016, 3, 4, 5, 18 & 19 May 2017

Date of Last Submission:

19 May 2017

Delivered at:

Brisbane

Delivered on:

10 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr Linklater-Steele

Solicitors for the Applicant:

Parker Family Law

Counsel for the Respondent:

Mr Bunning

Solicitors for the Respondent:	Sarah Cleeland Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Carmody
Solicitors for the Independent Children's Lawyer:	Legal Aid Queensland

ORDERS

That all previous Orders and Parenting Plans be discharged.
That the child, [X] born (omitted) 2009 (“the child”), live with the Father.
That the Father have sole parental responsibility for the child.
That there be a moratorium on the child seeing the Mother at all for six (6) months.
That the moratorium period be followed by a period of twelve (12) months during which the Mother’s time with the child is supervised by a suitably qualified supervisor from Life Care (or other agreed supervisor if it not available) with such supervision to be reportable and to be at the sole cost of the Mother.
That the child spend time with the Mother as follows:
(a)Supervised for three (3) hours on one day each alternate weekend for six (6) months subject to the availability of the supervision service;
(b)Thereafter supervised from 9.00am to 5.00pm on one day each alternate weekend for no less that a further period of six (6) months subject to the availability of the supervision service;
(c)Thereafter unsupervised on each alternate weekend from 9am to 5pm on Saturday and 9am to 5pm on Sunday for a period of twelve (12) months;
(d)Thereafter:
(i)From 9am Saturday to 5pm Sunday on every alternate weekend;
(ii)9am to 5pm on Mother’s Day (on the proviso the child spend Father’s Day with the Father);
(iii)Alternate Christmas Eve/Day/Boxing Day; and
(iv)Block time in holidays as may be agreed.
That the Mother is to pay the costs of any reports to be provided by the Supervisor.
That the Mother be restrained from attending at the child’s school or contacting the child’s school.
That the parties shall:
(a)Keep each other…

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 CRIBB & LANKESTER

Details

AGLC: Cribb and Lankester [2017] FCCA 1629
Case: [2017] FCCA 1629
Decision Date: 10 July 2017

CaseChat Overview and Summary

This matter concerned a dispute between the Father and the Mother regarding the future care arrangements for their child, [X]. The Honourable Justice Purdon-Sully presided over the proceedings in the Federal Circuit Court of Australia.

The court was required to determine the living arrangements for the child, the allocation of parental responsibility, and the nature and extent of contact the Mother would have with the child, particularly in light of concerns that necessitated significant restrictions. The court also had to consider the child's schooling, the exchange of information between the parents, and the potential for past conduct to warrant further investigation.

In reaching its decision, the court discharged all previous orders and parenting plans. It ordered that the child live with the Father and that the Father have sole parental responsibility. A six-month moratorium on the child seeing the Mother was imposed, followed by a period of supervised contact, with the Mother bearing the costs of supervision. The court then outlined a phased approach to increasing the Mother's unsupervised time with the child over a subsequent twelve-month period, before establishing a more regular, albeit still alternate weekend, schedule. Further orders addressed communication between the parents regarding the child's health and education, restrictions on discussing proceedings in the child's presence, and the liberty of the Father to change the child's school. The court also directed that the child's passport be delivered to the Father and that a Family Consultant explain the orders to the child. Finally, the court referred the matter for investigation into a possible breach of section 121 of the *Family Law Act 1975* by the Mother.

Orders

Orders of the court

That all previous Orders and Parenting Plans be discharged.

That the child, [X] born (omitted) 2009 (“the child”), live with the Father.

That the Father have sole parental responsibility for the child.

That there be a moratorium on the child seeing the Mother at all for six (6) months.

That the moratorium period be followed by a period of twelve (12) months during which the Mother’s time with the child is supervised by a suitably qualified supervisor from Life Care (or other agreed supervisor if it not available) with such supervision to be reportable and to be at the sole cost of the Mother.

That the child spend time with the Mother as follows:

(a) Supervised for three (3) hours on one day each alternate weekend for six (6) months subject to the availability of the supervision service;

(b) Thereafter supervised from 9.00am to 5.00pm on one day each alternate weekend for no less that a further period of six (6) months subject to the availability of the supervision service;

(c) Thereafter unsupervised on each alternate weekend from 9am to 5pm on Saturday and 9am to 5pm on Sunday for a period of twelve (12) months;

(d) Thereafter:

(i) From 9am Saturday to 5pm Sunday on every alternate weekend;

(ii) 9am to 5pm on Mother’s Day (on the proviso the child spend Father’s Day with the Father);

(iii) Alternate Christmas Eve/Day/Boxing Day; and

(iv) Block time in holidays as may be agreed.

That the Mother is to pay the costs of any reports to be provided by the Supervisor.

That the Mother be restrained from attending at the child’s school or contacting the child’s school.

That the parties shall:

(a) Keep each other informed at all times as to their residential addresses and residential and mobile telephone numbers;

(b) Keep each other informed as to the names and addresses of any treating medical practitioners or other healthcare practitioners who come into any contact with the child and this Order shall be an authority to any such practitioner to provide to the other party any information that such practitioner may lawfully provide about the child;

(c) Inform the other party as soon as reasonably practical of any injury or illness affecting the child that requires any medical or hospital attention and this Order authorises any such medical practitioner or hospital to release the child’s information to the other party.

10.

That by this Order the parties authorise any educational/child care institution attended by the child to provide to both parents any information about the child’s educational progress and school/child care related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the child. Any out of pocket expense connected to any such request shall be the responsibility of the party who made such request.

11.

That neither parent shall discuss any issues between the parties, including these proceedings, in the presence or hearing of the child and shall use their best endeavours to ensure that others do not do so.

12.

That the Father be at liberty to change the child’s school and enrol the child is a new school either immediately or when the Father deems appropriate.

13.

That the Father be at liberty to provide [X]’s school, the Police, the Department of Communities, Child Safety and Disability Services and Life Care (or such other agreed supervisor) with a copy of the Orders and Reasons for Judgment of the Court.

14.

That the Father be at liberty to engage a counsellor for [X] to provide supportive, non-reportable counselling, such counselling to be undertaken by Dr E subject to her agreement and if unavailable, as nominated by the Father, the father at liberty to provide the child’s counsellor with copies of any or all expert reports in this matter including a copy of the Orders and Reasons for Judgment of the Court.

15.

That the Father and Mother be at liberty to provide to their own therapeutic counsellors copies of any or all expert reports in this matter including a copy of the Orders and Reasons for Judgment of the Court.

16.

That the Mother forthwith deliver the child’s Passport to the Father.

17.

That Family Consultant, Mr J, meet with the child and explain the Orders to the child prior to the child being released into the Father’s care and that the child thereafter be released to the Father.

18.

That these Orders and Reasons for Judgment be referred to the Registrar of the Federal Circuit Court of Australia for referral to the Marshal of the Court for investigation into a possible breach by the mother of section 121 of the Family Law Act 1975 and what action, if any, should be taken in that regard.

19.

That 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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