Dawson and Wright - [2017] FamCA 1029

FAMILY COURT OF AUSTRALIA

DAWSON & WRIGHT

[2017] FamCA 1029

FAMILY LAW – CHILDREN – Magellan List – best interests – interim parenting orders – where current orders suspend the time the children spend with the father – whether the father should spend time with the children – where the mother opposes that the children spend time with the father – where the Independent Children’s Lawyer seeks the children spend supervised time with the father – where there are allegations that the father has physically abused the children – where there are allegations the father has exposed the children to sexually inappropriate behaviour – where the father denies the allegations – where the father alleges the mother has influenced and coached the children – orders made for the father to spend supervised time with the children.

Family Law Act 1975 (Cth) ss 60CC, 60CC(2A), 61DA

Goode & Goode (2006) FLC 93-286

APPLICANT:

Ms Dawson

RESPONDENT:

Mr Wright

INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

FILE NUMBER:

MLC

6838

2014

DATE DELIVERED:

28 June 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

28 June 2017

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Mandelert

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

Orders

BY CONSENT IT IS ORDERED

That the respondent have leave to withdraw the Contravention Applications filed on 7 March 2018 (2) and 4 May 2016.
AND THE COURT NOTES that the respondent has without admissions withdrawn the Contravention Applications in order that the further hearing of proceedings will not be delayed.
That the parties attend upon Professor B, psychiatrist, on 7 December 2017 or on such further or other date as advised by him for psychiatric assessment and report as to their mental welfare.
That the cost of the assessment and report of Professor B be borne by each of the parties.
That all extant applications be adjourned for Directions in the Magellan List on the first available date in 2018.

IT IS ORDERED BY THE COURT

That until further order the respondent spend supervised time with the children of the marriage C born … 2004 and D born … 2008 on an alternate weekend basis on such dates as may be arranged by the Independent Children's Lawyer and a professional supervisor.
That the cost of such supervision is to be borne by the respondent.

BY CONSENT IT IS ORDERED

That once the respondent father has had four supervised visits with the children pursuant to these orders the parties and the children commence family counselling with either the E Centre in Suburb F or G Group, at times and dates to be made by the relevant counselling department.
That the parties do all acts and things to forthwith enrol in the family counselling and confirm to the Independent Children's Lawyer their enrolment and acceptance at the appropriate centre.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders…

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 Dawson and Wright

Details

AGLC: Dawson and Wright [2017] FamCA 1029
Case: [2017] FamCA 1029
Decision Date: 28 June 2017

CaseChat Overview and Summary

In the matter of *Dawson and Wright*, Johns J of the Family Court of Australia considered applications concerning the welfare of the parties' children. The proceedings involved disputes between the parties regarding contravention applications and arrangements for the children.

The court was required to determine the appropriate orders regarding the withdrawal of contravention applications, the psychiatric assessment of the parties, supervised time between the respondent and the children, and family counselling. The court also needed to consider the allocation of costs for these assessments and supervision, and to ensure the parties understood their obligations and the consequences of contravention.

Johns J, by consent of the parties, ordered the withdrawal of contravention applications filed by the respondent. The court also ordered that both parties attend a psychiatric assessment and report by Professor B, with the costs to be borne equally. Further, the respondent was ordered to spend supervised time with the children on an alternate weekend basis, with the costs of supervision to be borne by the respondent. Upon completion of four supervised visits, the parties and children were to commence family counselling. The court also made orders pursuant to sections 65DA(2) and 62B of the relevant legislation, detailing the obligations and consequences of contravening the orders, which were to be included in a fact sheet attached to the orders. All extant applications were adjourned for directions.

Orders

Orders of the court

BY CONSENT IT IS ORDERED

That the respondent have leave to withdraw the Contravention Applications filed on 7 March 2018 (2) and 4 May 2016.

AND THE COURT NOTES that the respondent has without admissions withdrawn the Contravention Applications in order that the further hearing of proceedings will not be delayed.

That the parties attend upon Professor B, psychiatrist, on 7 December 2017 or on such further or other date as advised by him for psychiatric assessment and report as to their mental welfare.

That the cost of the assessment and report of Professor B be borne by each of the parties.

That all extant applications be adjourned for Directions in the Magellan List on the first available date in 2018.

IT IS ORDERED BY THE COURT

That until further order the respondent spend supervised time with the children of the marriage C born … 2004 and D born … 2008 on an alternate weekend basis on such dates as may be arranged by the Independent Children's Lawyer and a professional supervisor.

That the cost of such supervision is to be borne by the respondent.

BY CONSENT IT IS ORDERED

That once the respondent father has had four supervised visits with the children pursuant to these orders the parties and the children commence family counselling with either the E Centre in Suburb F or G Group, at times and dates to be made by the relevant counselling department.

That the parties do all acts and things to forthwith enrol in the family counselling and confirm to the Independent Children's Lawyer their enrolment and acceptance at the appropriate centre.

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.

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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