Dayley & Anor and Abram - [2012] FamCA 497

FAMILY COURT OF AUSTRALIA

DAYLEY AND ANOR & ABRAM

[2012] FamCA 497

FAMILY LAW – CHILDREN – With whom a child spends time – Paternal grandparents’ application for time to be spent with the child – Dispute between the mother and grandparents – Where the child’s father is deceased – Where there is a poor relationship between the child and the paternal grandparents – Where the mother is unable to communicate with the paternal grandparents – Where the mother has a personality disorder – Where on-going therapy is ordered for mother and child

Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 60CC(2), s 60CC(3), s 60CC(4)(b), s 65AA

Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531

1st APPLICANT:

Ms Dayley

2nd APPLICANT:

Mr Dayley

RESPONDENT:

Ms Abram

INDEPENDENT CHILD LAWYER:

Hamish Cumming Family Lawyers

FILE NUMBER:

SYC

6554

2009

DATE DELIVERED:

29 June 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

15 & 16 December 2011 and 14 February 2012

REPRESENTATION

COUNSEL FOR THE 1^ST & 2^ND

APPLICANTS:

Mr Tockar

SOLICITOR FOR THE 1^ST & 2^ND

APPLICANTS:

Clinch Long Letherbarrow Pty Limited

COUNSEL FOR THE RESPONDENT:

Mr Levet

SOLICITOR FOR THE RESPONDENT:

James Maspero

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gersbach

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

Orders

The following parenting orders are made in respect of the child J born on … April 2004 (“the child”).
That insofar as such orders concern the applicant grandparents, all previous orders made in relation to the child be discharged.
That order 3 of the Orders of 12 August 2010 be discharged.
That Dr R, or such other clinical psychologist as recommended by her or Dr S (“the psychologist”) be appointed as the child's therapist and leave be granted to the Independent Children's Lawyer to provide to the psychologist a copy of these Orders.
That subject to the psychologist's availability and discretion, therapy with the child take place as follows:-
a)That as soon as practicable after the making of these orders, the Independent Children's Lawyer arrange a schedule of appointments with the psychologist to implement the therapy;
b)That those sessions initially be scheduled once per week for a period of six consecutive weeks commencing as soon as practicable;
c)That for the period of 6 consecutive week days provided for in order 5(b), and at such other time as the psychologist may direct, the Applicant grandparents (provided they are given 48 hours advanced notice of the relevant appointment time), collect the child from school at 3.00 pm on the day of each of the child's therapy sessions, or in the event the day is not a school day from the McDonalds restaurant nearest to the child’s residential address and deliver her to the psychologist. That at the conclusion of each therapy session, the applicant grandparents shall deliver the child to the…

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.

Keep reading for free

Create a free CaseChat account to read Dayley & Anor and Abram and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FamCA 497
Decision Date: 29 June 2012

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in April 2004, involving the applicant grandparents and the respondent mother. The court was required to determine the arrangements for the child's therapy, her time with the grandparents and mother, and various other related matters, including the mother's mental health treatment and communication between the parties and the child's school.

The court's primary focus was on establishing a therapeutic framework for the child, appointing a clinical psychologist to provide therapy and outlining a detailed schedule for sessions, including the role of the grandparents in facilitating attendance. The court also addressed the child's living arrangements, specifying periods of time the child would spend with the applicant grandparents during school terms and holidays, and establishing protocols for school communication and notification of any relocation or changes to contact details. Furthermore, the court made orders concerning the respondent mother's attendance at therapy for mood instability and the payment of costs.

The court discharged previous parenting orders concerning the applicant grandparents and made comprehensive new orders. These included the appointment of a psychologist for the child, with the applicant grandparents responsible for transporting the child to and from therapy sessions and for paying the psychologist's fees. The respondent mother was directed to attend therapy for mood instability and to facilitate the child's attendance at her own therapy, with specific notification requirements in case of cancellation. The orders also detailed the child's time with the grandparents, including during school holidays, and imposed restrictions on denigrating other parties or discussing proceedings in the child's presence. Finally, the court ordered the parties to contribute to the costs of the Independent Children's Lawyer.

Orders

Orders of the court

The following parenting orders are made in respect of the child J born on … April 2004 (“the child”).

That insofar as such orders concern the applicant grandparents, all previous orders made in relation to the child be discharged.

That order 3 of the Orders of 12 August 2010 be discharged.

That Dr R, or such other clinical psychologist as recommended by her or Dr S (“the psychologist”) be appointed as the child's therapist and leave be granted to the Independent Children's Lawyer to provide to the psychologist a copy of these Orders.

That subject to the psychologist's availability and discretion, therapy with the child take place as follows:-

a) That as soon as practicable after the making of these orders, the Independent Children's Lawyer arrange a schedule of appointments with the psychologist to implement the therapy;

b) That those sessions initially be scheduled once per week for a period of six consecutive weeks commencing as soon as practicable;

c) That for the period of 6 consecutive week days provided for in order 5(b), and at such other time as the psychologist may direct, the Applicant grandparents (provided they are given 48 hours advanced notice of the relevant appointment time), collect the child from school at 3.00 pm on the day of each of the child's therapy sessions, or in the event the day is not a school day from the McDonalds restaurant nearest to the child’s residential address and deliver her to the psychologist. That at the conclusion of each therapy session, the applicant grandparents shall deliver the child to the respondent mother's home.

That as and from the first Friday after the child's sixth (6th) therapy session with the psychologist and thereafter every second Friday until 30 November 2012 the Applicant grandparents collect the child from school at 3.00 pm, or in the event the day is not a school day from the McDonald's restaurant nearest to the child's residential address, and deliver the child to the Mother's residence at 8.30 pm after each visit.

That the child continue to see the psychologist for a period of not less than 12 months commencing on the date of her first session for the frequency and duration as recommended by the psychologist.

That the applicant grandparents pay the psychologist's fees as and when they are due.

That save as set out in order 5(c) above and/or any direction by the psychologist, the respondent mother take the child to and collect the child from her therapy with the psychologist, or make all necessary arrangements to ensure the child's attendance at all therapy sessions at dates, times and locations as directed by the psychologist from time to time.

10.

That save as directed by the psychologist, the respondent mother not be present during the child's therapy sessions.

11.

If the respondent mother fails to take the child to her session with the psychologist as and when those sessions are scheduled, the mother shall forthwith notify the grandparents of her cancellation and the reasons for the cancellation. In the event of any cancellation, the paternal grandparents shall make an alternate appointment and collect the child from school and take her to that appointment, notifying the mother in writing of the date and time of the appointment.

12.

That as and from 30 November 2012 the child shall spend time with the applicant grandparents as follows:-

a) During the school term, each alternate weekend from the conclusion of school each Friday until the commencement of school the following Monday;

b) During each of the Term 1, Term 2, and Term 3 school holiday periods, for one (1) week, commencing on the last day of the child's attendance at school and for seven (7) consecutive nights concluding at 4.00pm on the day after the seventh (7th) night;

c) In each Christmas school holiday period, for two (2) weeks, commencing at 9.00 am on 2 January each year and concluding a 4.00 pm on the day after the fourteenth (14) night;

d) In the event the child is to spend time with the applicant grandparents on Mother's Day or on the mother's birthday pursuant to these orders, such time be suspended.

13.

That for the purpose of facilitating changeover, the child shall be collected and returned to school by the Applicant grandparents and if changeover is to occur on non-school day, then the child is to be collected and returned to the Mother's residence (save as for provided in order 5(c)).

14.

That within seven (7) days of the date of these orders the mother authorise and instruct the school at which the child attends (or any school the child attends in the future) to:-

a) Forward to the applicant grandparents copies of all of the child's school photographs and reports at least twice per year, with the cost of same being born by the applicant grandparents;

b) Provide to the applicant grandparent notice of any 'end of year' or other such events in which the child is involved and to which grandparent would ordinarily be invited and/or attend and permit the applicant grandparent to discuss such matter with the school staff and attend such events.

15.

That if the respondent mother intends to relocate the child's current residence or school enrolment or change either the mother's and the child's landline or mobile telephone number(s), the mother shall notify the paternal grandparents or solicitors in writing of any change twenty-eight (28) days prior to such occurring, or in the case of an emergency as soon as practicable after the change including in such notice details of the child's new residential address, school and/or landline and/or telephone number.

16.

That each party be and hereby is restrained from:-

a) Denigrating the other or any member of the other's family to, or in the presence or hearing of the child;

b) Discussing these proceedings with or in the presence or hearing of the child.

17.

That the respondent mother attend upon her general practitioner and obtain a mental health care plan for therapy with a clinical psychologist for management of mood instability.

18.

That the respondent mother thereafter attend upon a clinical psychologist for 12 sessions, or such number of sessions as provided under the mental health care plan, of Cognitive Behaviour therapy for management of mood instability, noting that the mother's clinical psychologist shall not be the child's therapist.

19.

That the respondent mother provide to her clinical psychologist a copy of these Orders together with a copy of the Report of Dr S.

20.

That within 28 days, each of the parties pay the sum of $4209.70 (inclusive of GST) in respect of the Independent Children's Lawyers costs.

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

Full text does not contain this section.