Davidson and Cox and Anor - [2017] FCCA 2832

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAVIDSON & COX & ANOR

[2017] FCCA 2832

Catchwords:
FAMILY LAW – Parenting – care and protection order – intervention by Department of Health and Human Services – parental responsibility – change in living arrangements – mother’s attitude to the father – mother’s capacity to parent – mental health of the mother – supervision – unacceptable risk of psychological harm.

Legislation:

Family Law Act 1975(Cth), ss.4, 60B, 60CA, 60CC, 65DAC, 65DAE, 69ZK

Cases cited:

A & A (1998) FLC 92-800
Champness & Hanson (2009) FLC 93-407
H & K [2001] FamCA 687

M & M (1988) 166 CLR 69

Oscar & Traynor [2008] FamCA 95
Re David (1997) FLC 92-776
Rice & Asplund (1979) FLC 90-725

Applicant:

MR DAVIDSON

Respondent:

MS COX

Intervenor:

DEPARTMENT OF HEALTH AND HUMAN SERVICES

File Number:

HBC 95 of 2013

Judgment of:

Judge Baker

Hearing date:

25,26,27,28, 29 July 2016,

8 September 2016,

20,21,23 February 2017,

24 March 2017, 11 August 2017

and 27 October 2017.

Date of Last Submission:

27 October 2017

Delivered at:

Hobart

Delivered on:

22 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Munro

Solicitors for the Applicant:

Munro & Associates

Counsel for the Respondent:

Ms Graves

Solicitors for the Respondent:	N/A
Counsel for the Independent Children’s Lawyer:	Mr Fitzgerald

Solicitors for the Respondent:	Fitzgerald & Browne
Counsel for the Department of Health and Human Services:	Mr Lee

Solicitors for the Department of Health and Human Services:

Director of Public Prosecutions

ORDERS

BY CONSENT THE COURT ORDERS THAT:

That the child [X] born (omitted) 2007 ([X]) live with the father.
That the father have sole parental responsibility for [X].
That [X] spend supervised time with the mother each week for 1-2 hours at (omitted parenting program) or other supervised time by an agreed supervisor with such agreement to be in writing between the parties.
That the mother have supervised telephone communication with [X] each Tuesday, Thursday, Sunday between 6:30pm and 7:30pm for approximately 30 minutes and the mother shall telephone the father and he will facilitate that call to [X].
That neither party shall denigrate the other to the child and shall as far as is practical not allow others to do so.
That neither party shall consume illicit drugs while [X] is in their care.
That neither party shall use physical discipline on [X].
That the mother is restrained from taking [X] to any medical practitioner or counsellor except for a medical emergency.
That the mother is restrained from attending the school that [X] attends unless invited by the father in writing.
That the mother can contact the school attended by [X] by telephone to be provided (via post) with school reports, notices and school photos for [X].
That [X] spend other time as agreed in writing between the parties.
That Mr I’s report, Dr D’s report and the Judgment and Reasons for Judgment be released to any counsellor of the parties or [X] and also any expert who conducts a review.
That forthwith…

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 Davidson and Cox and Anor

Details

AGLC: Davidson and Cox and Anor [2017] FCCA 2832
Case: [2017] FCCA 2832
Decision Date: 22 November 2017

CaseChat Overview and Summary

In the matter of *Davidson and Cox and Anor*, Judge Baker of the Federal Circuit Court of Australia made orders by consent concerning the child [X]. The dispute involved arrangements for the child's residence, parental responsibility, and communication and contact with both parents. The orders also addressed specific behavioural expectations and restrictions for each parent.

The court was required to determine the terms of final parenting orders that reflected the agreement of the parties. These terms encompassed the child's living arrangements, the allocation of parental responsibility, the nature and supervision of time spent with each parent, and communication protocols. Additionally, the court needed to address specific prohibitions, including those relating to denigration, drug use, physical discipline, and contact with the child's school and medical providers. The court also noted the inconsistency of the consent orders with prior interim family violence orders.

The court's reasoning was based on the consent of the parties to the proposed orders. The orders themselves reflect a considered approach to the child's welfare, with provisions for supervised contact and communication designed to manage risks and facilitate a relationship between the child and both parents. The court applied principles of family law, particularly those relating to the best interests of the child, by approving arrangements that the parents had agreed upon, subject to the court's oversight and the specific conditions outlined. The court also incorporated provisions for the release of reports and the identification of the father on the child's birth certificate.

By consent, the court ordered that the child [X] live with the father and that the father have sole parental responsibility. The mother was granted supervised time with the child and supervised telephone communication. The orders also included specific prohibitions against denigration, illicit drug use, and physical discipline, and imposed restrictions on the mother's contact with the child's school and medical providers, while allowing her to receive school reports. The court noted that these orders were inconsistent with previous interim family violence orders and attached particulars regarding contravention consequences.

Orders

Orders of the court

BY CONSENT THE COURT ORDERS THAT:

That the child [X] born (omitted) 2007 ([X]) live with the father.

That the father have sole parental responsibility for [X].

That [X] spend supervised time with the mother each week for 1-2 hours at (omitted parenting program) or other supervised time by an agreed supervisor with such agreement to be in writing between the parties.

That the mother have supervised telephone communication with [X] each Tuesday, Thursday, Sunday between 6:30pm and 7:30pm for approximately 30 minutes and the mother shall telephone the father and he will facilitate that call to [X].

That neither party shall denigrate the other to the child and shall as far as is practical not allow others to do so.

That neither party shall consume illicit drugs while [X] is in their care.

That neither party shall use physical discipline on [X].

That the mother is restrained from taking [X] to any medical practitioner or counsellor except for a medical emergency.

That the mother is restrained from attending the school that [X] attends unless invited by the father in writing.

10.

That the mother can contact the school attended by [X] by telephone to be provided (via post) with school reports, notices and school photos for [X].

11.

That [X] spend other time as agreed in writing between the parties.

12.

That Mr I’s report, Dr D’s report and the Judgment and Reasons for Judgment be released to any counsellor of the parties or [X] and also any expert who conducts a review.

13.

That forthwith within seven days the parties shall complete the application to the Registrar of Births, Deaths and Marriages for the birth certificate of the child [X] born the (omitted) 2007 to identify the father as Mr Davidson.

BY CONSENT THE COURT NOTES THAT:

14.

These orders are inconsistent with the following Orders provided in the Interim Family Violence Orders:

(a) Order 2 - not threaten harass or abuse [X];

(b) Order 3 - in respect to approaching [X] or Ms Cox;

(d) Order 5 – not to go within 200 metres of where [X] may be living;

(e) Order 8- not damage property of [X];

(f) Order 9 – not go within 200 metres of School A where [X] may be present.

15.

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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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