Dent and Dent - [2017] FCCA 1255

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENT & DENT

[2017] FCCA 1255

Catchwords:
FAMILY LAW – Parenting – failure of party to appear on multiple occasions – order for mental health assessment – non-compliance with orders to file documents – failure to prosecute application – family violence causing psychological harm to the child – costs order.

Legislation:

Family Law Act 1975 (Cth), Pt VII

Family Law Act 1975 (Cth), Pt XV

Family Court Rules 2004 (Cth), Part 18.2

Cases cited:

Cross & Beaumont [2008] FamCAFC 68

Hawkins & Roe [2012] FamCAFC 77

Penfold v Penfold (1980) HCA 4

Applicant:

MR DENT

Respondent:

MS DENT

File Number:

NCC 1606 of 2011

Judgment of:

Judge Middleton

Hearing date:

2 May 2017

Date of Last Submission:

2 May 2017

Delivered at:

Newcastle

Delivered on:

2 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr Weightman

Solicitors for the Applicant:

Carroll & O'Dea Lawyers

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

N/A

THE COURT ORDERS THAT:

All previous orders are discharged.
The father has sole parental responsibility for the X born (omitted) 2004 (“X”).
X live with the father.
X spend time with the mother as requested by X.
X communicate with the mother as requested by X.
Prior to X spending any time with the mother, the mother is to contact her General Practitioner for the purpose of arranging a mental health assessment and that she do all things reasonably necessary to cause her General Practitioner to provide a letter to her addressing the concerns, namely the mother’s mental health and insight into the impact of her behaviour on others including on her children.
Prior to X spending any time with the mother, the mother provide to the father a copy of the letter obtained by her from her General Practitioner as set out in order 6 above.
Prior to X spending any time with the mother, the mother engage in a program as recommended by the Manager of Child Dispute Services at the Family Court Registry in Newcastle to assist her to understand and develop skills and strategies to appropriately parent adolescent children.
Prior to X spending any time with the mother, the mother provide to the father evidence that she has engaged in a program as set out in order 8 above and has completed that program and any subsequent programs recommended to her by the facility with which she is engaged.
In the event X requests to spend time with the mother and the mother has complied with Orders 6, 7, 8 and 9 of these Orders, changeover shall occur as agreed between the parents and if no agreement, the Mother will collect X at the commencement of time from the father’s place of residence and will deliver X to the father’s place of residence at the conclusion of time.
The mother be restrained from attending and/or contacting any school X attends.
Within 7 days of receiving each of X’s school reports, the father provide to the mother a copy…

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 Dent and Dent

Details

AGLC: Dent and Dent [2017] FCCA 1255
Case: [2017] FCCA 1255
Decision Date: 2 May 2017

CaseChat Overview and Summary

In *Dent and Dent*, heard by Judge Middleton, the dispute concerned parental responsibility and living arrangements for a child, X. The court was required to determine the most appropriate orders for X's welfare, considering the parents' circumstances and the child's best interests.

The central legal issues before the court were the allocation of parental responsibility, the determination of X's residence, and the nature and extent of X's time spent with each parent. The court also had to consider conditions precedent to any time X might spend with the mother, including mental health assessments, engagement in parenting programs, and restrictions on contact with specific individuals. Further issues included communication between parents, school contact, international travel, and the conduct of parents in the presence of X.

Judge Middleton ordered that the father have sole parental responsibility for X and that X live with the father. X was to spend time with and communicate with the mother as X requested. However, significant conditions were imposed on the mother prior to any such contact, including a mental health assessment, provision of a GP's letter addressing her mental health and insight, and engagement in a recommended parenting program. The mother was also restrained from attending or contacting X's school and from allowing X unsupervised time with the maternal grandfather. The court also made orders regarding communication, notification of accidents or illness, and prohibited denigration of the other parent in X's presence. All previous applications were dismissed, and the Independent Children's Lawyer was discharged. The mother was ordered to pay the father's costs.

Orders

Orders of the court

All previous orders are discharged.

The father has sole parental responsibility for the X born (omitted) 2004 (“X”).

X live with the father.

X spend time with the mother as requested by X.

X communicate with the mother as requested by X.

Prior to X spending any time with the mother, the mother is to contact her General Practitioner for the purpose of arranging a mental health assessment and that she do all things reasonably necessary to cause her General Practitioner to provide a letter to her addressing the concerns, namely the mother’s mental health and insight into the impact of her behaviour on others including on her children.

Prior to X spending any time with the mother, the mother provide to the father a copy of the letter obtained by her from her General Practitioner as set out in order 6 above.

Prior to X spending any time with the mother, the mother engage in a program as recommended by the Manager of Child Dispute Services at the Family Court Registry in Newcastle to assist her to understand and develop skills and strategies to appropriately parent adolescent children.

Prior to X spending any time with the mother, the mother provide to the father evidence that she has engaged in a program as set out in order 8 above and has completed that program and any subsequent programs recommended to her by the facility with which she is engaged.

10.

In the event X requests to spend time with the mother and the mother has complied with Orders 6, 7, 8 and 9 of these Orders, changeover shall occur as agreed between the parents and if no agreement, the Mother will collect X at the commencement of time from the father’s place of residence and will deliver X to the father’s place of residence at the conclusion of time.

11.

The mother be restrained from attending and/or contacting any school X attends.

12.

Within 7 days of receiving each of X’s school reports, the father provide to the mother a copy of the school reports.

13.

X be permitted to travel internationally.

14.

In the event X spends time with the mother, the mother is restrained from allowing X to spend unsupervised time with Mr S, the maternal grandfather.

15.

The mother be at liberty to send to X birthday cards and/or presents, Christmas cards and/or presents and the father will immediately upon receipt provide to X any such items forwarded by the mother.

16.

The father will notify the mother immediately upon the happening of a serious accident or illness experienced by X and as to the treatment being rendered.

17.

Each parent is hereby restrained from denigrating the other or any partner of the other in the presence of X and in any way using obscene or inappropriate language in the presence of X.

18.

Each parent keep the other informed at all times of his or her then current address and telephone number and keep current a telephone service available for the purposes associated with these orders.

19.

All outstanding applications are dismissed and the proceedings are removed from the active pending cases list.

20.

The Independent Children’s Lawyer is discharged.

21.

No order as to costs for the Independent Children’s Lawyer.

22.

The respondent Ms Dent pay to the applicant Mr Dent, the sum of $8955.75.

23.

The respondent has 60 days to pay such sum.

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.