Danell and Saller (No.2) - [2015] FamCA 1072

FAMILY COURT OF AUSTRALIA

DANELL & SALLER (NO.2)

[2015] FamCA 1072

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the mother seeks that the father’s supervised time with the children be suspended and that she have sole parental responsibility for the children – Where the application is opposed by the father and the ICL – Where the ICL proposes the father’s time with the children be reduced and the father’s activities with the children be agreed to in advance – Where the supervision service has recently suspended the father’s time for four contact periods – Whether the father poses a risk to the children – Whether the mother’s anxiety, from her relationship with the father, has been aggravated by recent events – Whether the mother’s psychological health poses a risk to the children – Where a suspension would result in the children having no time with the father – Where the supervision service continues to be willing to supervise the father’s time – Where the Court finds there is not sufficient evidence to warrant a suspension of the father’s time in circumstances where there are sufficient safeguards to militate risk – Where the Court finds insufficient evidence as to the nature and extent of the mother’s anxiety and its impact on her parenting – Orders made reducing the father’s time with the children and varying changeover arrangements – Orders made for the parents and supervision service to agree as to what activities the father participates in with the children – Ancillary orders made as to the provision of information.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA

Banks & Banks (2015) FLC 93-637
Blinko & Blinko [2015] FamCAFC 146
Goode & Goode (2006) FLC 93-286

APPLICANT:

Ms Danell

RESPONDENT:

Mr Saller

INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

FILE NUMBER:

SYC

575

2015

DATE DELIVERED:

3 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

9 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lawson

SOLICITOR FOR THE APPLICANT:

Gordon & Barry Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Clinch Long Letherbarrow

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central

Orders

Order 2 of the Orders made on 25 February 2015 is varied to provide that the time the father spends with the children is to be as follows:
The children are to spend supervised time with the father on each Wednesday and Friday for up to three (3) hours commencing at 4.30 p.m., and on each Sunday for four (4) hours commencing at 11.00 a.m.
The activities the children participate in with the father when they are spending time with him shall be as agreed between the parents and the supervisor and, in the absence of agreement, as agreed between the supervisor and the Independent Children’s Lawyer.
Orders 4, 5, 6 and 7 made on 25 February 2015 are discharged and replaced with the following:
That changeover be effected by:
a.the supervisor (in the absence…

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 Danell and Saller (No.2)

Details

AGLC: Danell and Saller (No.2) [2015] FamCA 1072
Case: [2015] FamCA 1072
Decision Date: 3 December 2015

CaseChat Overview and Summary

In *Danell and Saller (No.2)*, McClelland J considered an application to vary existing orders concerning the time children would spend with their father. The dispute centred on the practical arrangements for supervised contact, including the specific times and durations of these visits, the nature of the activities undertaken, and the procedures for the transfer of the children between parents. The mother also sought to introduce new provisions regarding notification of medical and counselling appointments for the children and disclosure of past and future appointments.

The court was required to determine whether to vary the existing orders regarding the father's supervised time with the children. Specifically, the issues included the appropriate schedule and duration of supervised contact, the process for agreeing on activities during these times, and the method of changeover between the parents. Furthermore, the court had to consider the mother's request for enhanced notification and disclosure requirements concerning the children's and parties' medical and counselling appointments.

McClelland J reasoned that the existing orders needed modification to ensure the children's best interests were met, particularly in relation to the practicalities of supervised contact. The court varied the orders to specify the exact days, times, and durations for the father's supervised time with the children, and established a clear protocol for agreeing on activities, prioritising parental agreement and, failing that, the supervisor and Independent Children's Lawyer. The court also altered the changeover procedures to be managed by the supervisor to minimise direct contact between the parents. New provisions were introduced requiring the mother to provide advance written notice of the children's appointments and to disclose past attendance details, and both parties were ordered to disclose their own counselling attendance.

The court ordered variations to the existing orders concerning the father's supervised time with the children, including specific schedules and changeover procedures. New orders were made requiring seven days' written notice for the children's appointments and disclosure of past and future medical and counselling appointments for both the children and the parties. All other previous orders remained in force.

Orders

Orders of the court

Order 2 of the Orders made on 25 February 2015 is varied to provide that the time the father spends with the children is to be as follows:

The children are to spend supervised time with the father on each Wednesday and Friday for up to three (3) hours commencing at 4.30 p.m., and on each Sunday for four (4) hours commencing at 11.00 a.m.

The activities the children participate in with the father when they are spending time with him shall be as agreed between the parents and the supervisor and, in the absence of agreement, as agreed between the supervisor and the Independent Children’s Lawyer.

Orders 4, 5, 6 and 7 made on 25 February 2015 are discharged and replaced with the following:

That changeover be effected by:

a. the supervisor (in the absence of the father) collecting the children from the mother’s residence fifteen (15) minutes prior to the commencement of the father’s time with the children and delivering the children to a place agreed between the father and supervisor; and

b. the supervisor (in the absence of the father) returning the children to the mother’s residence fifteen (15) minutes after the conclusion of the father’s time with the children.

Except in the case of emergency, the mother is to provide seven (7) days written notice to the father of any appointment for the children with a medical practitioner, psychologist or counsellor.

Within seven (7) days of the date of these Orders, the mother is to disclose to the father and the Independent Children’s Lawyer details of all appointments with medical practitioners, psychologists and/or counsellors attended by the children from 24 January 2015 to date, including the name of the practitioner, the date of the appointment and any relevant diagnosis or treatment provided by that practitioner.

Within seven (7) days of the date of these Orders, each party is to disclose to the other details of any psychologist and/or counsellor attended upon by them during the period from 24 January 2015 to date.

To avoid doubt, in all other respects the Orders made on 25 February 2015 and 22 May 2015 remain in force.

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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