Cryall and Peterman - [2009] FamCA 906

FAMILY COURT OF AUSTRALIA

CRYALL & PETERMAN

[2009] FamCA 906

FAMILY LAW – CHILDREN – With whom children live – Best interests – Emotional abuse

APPLICANT:

Ms Cryall

RESPONDENT:

Mr Peterman

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYC

5885

2007

DATE DELIVERED:

29 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney and Parramatta

JUDGMENT OF:

STEVENSON J

HEARING DATE:

3/3/2008, 31/3/2008, 21/8/2008,
25-26-27-28-29/8/2008,
17-18-19-20-21/11/2008, 5/12/2008, 23/1/2009, 14/4/2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Millar

SOLICITOR FOR THE APPLICANT:

Meyer Pigdon

COUNSEL FOR THE RESPONDENT:

Mr North SC with Mr Maurice

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wearne

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hafey

Orders

All existing orders in relation to the children:
D born … April 1995
M born … August 1998
T born … June 2001
(‘the children’) are discharged.
2.1 The father has sole responsibility for making decisions about major long-term issues in relation to the children.
2.2The father shall consult with the mother about major long-term issues in relation to the children and endeavour to reach agreement with her as to such decisions.
Each of the parties has sole responsibility for making decisions about the day-to-day care of the children, when they are with that parent pursuant to these orders.
The children shall live with the father at all times other than the periods prescribed in order 5, during which they will live or spend time with the mother.
The children shall live or spend time with the mother on a supervised basis during the following periods:
5.1From the conclusion of school until 7:00pm on each alternate Friday during school term time, commencing on 7 August 2009.
5.2From 10:00am until 5:00pm on each alternate Saturday and Sunday during school term time, commencing on 8 and 9 August 2009.
5.3For one half of all school holidays, being the first half in odd-numbered years and the second half in even numbered years unless the parties agree otherwise in writing.
5.4From 9:00am until 5:00pm on Mothers Day.
The children’s time with the mother pursuant to order 5 shall be supervised as follows:
6.1Until 20 September 2009, by an employee of Dial-An-Angel who, insofar as is reasonably practicable, shall be female and aged no less than 40 years.
6.2 The father shall pay the cost of supervision in accordance with order 6.1.
6.3From 2 October 2009 by an agreed person and/or one of the following people:
Mr SY Cryall
Ms NE Cryall
Ms MT Cryall
Ms KMH
Mr GYH
Ms JEL
Mr PR Cryall
Ms KE Cryall
Mr MK Cryall
Mr SMS
Ms KED
Mr BTD
Ms KNT
provided that each supervisor signs, or has signed, an undertaking in the form annexed to these orders.
7.1 The father shall arrange supervision for the purposes of order 6.1.
7.2The mother shall arrange supervision for the purposes of order 6.3 and advise the father of the identity of the supervisor no later than 24 hours prior…

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.

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Details

Case: [2009] FamCA 906
Decision Date: 29 July 2009

CaseChat Overview and Summary

Stevenson J presided over proceedings concerning the children D, M, and T, born in 1995, 1998, and 2001 respectively. The dispute centred on the living arrangements and parental responsibilities for these children, with the court ultimately discharging all existing orders and making new provisions regarding their care and contact.

The court was required to determine the primary residence of the children, the allocation of decision-making authority for major long-term issues, and the nature and extent of the mother's time with the children. Crucially, the court had to consider the children's welfare in light of the parents' respective capacities, the risks associated with the mother's behaviour, and the practicalities of supervision for contact. The court also had to assess the impact of any changes to the children's circumstances and the practical difficulties and expenses involved in facilitating contact.

Stevenson J reasoned that while the children expressed a wish to live with their mother, there was a significant risk they would be exposed to her "reactive behaviour, consistent negativity toward their father and failure to set proper limits." The judge noted the father's efforts to facilitate the children's relationship with the mother, including bearing the costs of supervision. Conversely, the mother had created difficulties regarding supervisors and engaged in disputes. The court considered the evidence of Dr. W, who expressed concerns about supervision by the mother's friends and family due to their potential to share her values and difficulty in preventing her problematic behaviour, such as drinking. Dr. W also outlined risks to the children from unsupervised time, including emotional abuse and "brainwashing" about their father.

The court ordered that the father have sole responsibility for major long-term decisions, though he must consult with the mother. The children are to live with the father, with supervised time with the mother on alternate Fridays, alternate weekends, and during half of the school holidays. Supervision arrangements were detailed, initially by an employee of Dial-An-Angel and subsequently by agreed persons or specified family and friends, provided they signed an undertaking. The father is to bear the cost of supervision. The mother is restrained from contact outside these orders and from consuming alcohol or illicit drugs when the children are in her care. The orders also include provisions for communication between the children and the mother, restraints on denigrating each other, and information sharing by the father regarding significant matters concerning the children. The court also continued the appointment of an Independent Children's Lawyer for 12 months and adjourned the father's application for exclusive occupation of the former matrimonial home. A fact sheet detailing obligations and consequences of contravention was attached to the orders.

Orders

Orders of the court

All existing orders in relation to the children:

D born … April 1995

M born … August 1998

T born … June 2001

(‘the children’) are discharged.

2.1 The father has sole responsibility for making decisions about major long-term issues in relation to the children.

2.2 The father shall consult with the mother about major long-term issues in relation to the children and endeavour to reach agreement with her as to such decisions.

Each of the parties has sole responsibility for making decisions about the day-to-day care of the children, when they are with that parent pursuant to these orders.

The children shall live with the father at all times other than the periods prescribed in order 5, during which they will live or spend time with the mother.

The children shall live or spend time with the mother on a supervised basis during the following periods:

5.1 From the conclusion of school until 7:00pm on each alternate Friday during school term time, commencing on 7 August 2009.

5.2 From 10:00am until 5:00pm on each alternate Saturday and Sunday during school term time, commencing on 8 and 9 August 2009.

5.3 For one half of all school holidays, being the first half in odd-numbered years and the second half in even numbered years unless the parties agree otherwise in writing.

5.4 From 9:00am until 5:00pm on Mothers Day.

The children’s time with the mother pursuant to order 5 shall be supervised as follows:

6.1 Until 20 September 2009, by an employee of Dial-An-Angel who, insofar as is reasonably practicable, shall be female and aged no less than 40 years.

6.2 The father shall pay the cost of supervision in accordance with order 6.1.

6.3 From 2 October 2009 by an agreed person and/or one of the following people:

Mr SY Cryall

Ms NE Cryall

Ms MT Cryall

Ms KMH

Mr GYH

Ms JEL

Mr PR Cryall

Ms KE Cryall

Mr MK Cryall

Mr SMS

Ms KED

Mr BTD

Ms KNT

provided that each supervisor signs, or has signed, an undertaking in the form annexed to these orders.

7.1 The father shall arrange supervision for the purposes of order 6.1.

7.2 The mother shall arrange supervision for the purposes of order 6.3 and advise the father of the identity of the supervisor no later than 24 hours prior to the commencement of all periods of living or spending time with her.

The supervisor shall collect the children from their schools or the father’s home and return them to the father’s home at the commencement and conclusion of all periods of living and spending time with the mother.

The children shall communicate with the mother by telephone on no less than two occasions per week by agreement, or failing agreement each Tuesday and Thursday, between 5:30pm and 7:30pm by way of the mother initiating the calls.

10.

Each of the parties is restrained from:

10.1 denigrating each other or extended family members in the presence of hearing of the children

10.2 initiating discussion with the children about these proceedings and future living arrangements.

11.

The mother is restrained from:

11.1 having any contact with or spending any time with the children outside of the provision of these orders

11.2 consuming any alcohol or illicit drugs during any period when the children are in her care.

12.

In the event that Dr W certifies that the mother has successfully completed therapy with Dr R or any other person whom he (Dr W) may recommend if Dr R is unable to continue and subject to Dr W’s recommendation, the children shall spend unsupervised time with the mother as agreed or failing agreement:

12.1 each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday

12.2 for one half of all school holidays, being the first half in odd numbered years and second half in even numbered years unless otherwise agreed.

13.

The father shall keep the mother informed of significant matters relating to the children, including but not limited to:

13.1 any significant medical issue including illness, accident and hospitalisation

13.2 events relating to the general health of each child, including medical appointments, test results and progress reports

13.3 occasions of special significance to each child

13.4 matters relating to the children’s education including parent/teacher interviews, disciplinary matters, achievements, awards, concerts, special events and sports days.

14.

The appointment of the Independent Children’s Lawyer is continued for a period of 12 months from the date of these orders.

15.

The father’s application for exclusive occupation of the former matrimonial home is adjourned for mention on a date to be arranged with the Associate to Justice Fowler.

16.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I am satisfied that the father has done what he can to facilitate and encourage the children’s relationship with their mother. He has met all of the cost of supervision by Dial-An-Angel. He has attempted to negotiate holiday visits for the children with their mother to their maternal grandparents and other family in Western Australia. The mother has created difficulties by objecting to some supervisors and engaging in disputes with others. It may well have been that there was some justification for her annoyance on occasions.section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i)either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; The children’s stated wish to live with their mother would be fulfilled if the current primary residence arrangements are reversed. On the other hand, there is a real risk that they would then be exposed to her reactive behaviour, consistent negativity toward their father and failure to set proper limits. It is thus necessary to consider the views of Dr W and Dr R as to the likelihood that the mother will continue to engage in the behaviour which she has displayed so far. I will do so below when I consider the capacity of each of the parents to meet the children’s needs.section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; The cost of professional supervision of the children’s time with their mother has been substantial and borne entirely by the father. There is an issue between the parties as to whether future supervisors should be only employees of Dial-An-Angel or whether friends and family of the mother could adequately fulfil that role. In the past the father has agreed to supervision by certain members of the mother’s family and some of her friends. He is now most reluctant to accept any arrangement other than professional supervision. The Independent Children’s Lawyer proposed that family and friends of the mother act as supervisors, subject to their entering into a written undertaking for a period of six alternate weekends on Saturday and Sunday. The children’s time with their mother would then be unsupervised and limited to day periods. Dr W recommended against supervision by family and friends of the mother. In his oral evidence he said:“I do have a difficulty with her friends and family supervising because they would be likely to share her values, for example, it would be hard for a friend to stop her drinking.”Dr W summarised the risks to the children of unsupervised time in his oral evidence. He said that they will be subjected to:· emotional abuse· their mother’s out of control behaviour· discussions and brainwashing about their father· an idealised view of their mother