Derrick and Hicks - [2019] FamCA 2

FAMILY COURT OF AUSTRALIA

DERRICK & HICKS

[2019] FamCA 2

FAMILY LAW – CHILDREN – Interim application – Where the father seeks orders that the children’s supervised time with him be extended – Where the father seeks orders that the contact service providing supervision of the children’s time with him be changed – Where the father seeks orders that he and the children attend family therapy – Where the father and the children have a strained relationship – Court finds that supervision of the children’s time with the father is mitigating any risk of harm that would otherwise be posed to them by that time – Court finds that there is a possibility of the children developing a more meaningful relationship with the father and that doing so would be in their best interests – Orders made for optional extension of the children’s time with the father, with consideration to be had to the children’s views in that regard – Orders made facilitating a change of the contact service providing supervision if the parties are unable to agree to a particular service – Orders made for family therapy.

Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61DA, 65DAA

Acton & Burton [2015] FamCA 469
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Walker & Walker [2013] FCWA 85

APPLICANT:

Mr Derrick

RESPONDENT:

Ms Hicks

INDEPENDENT CHILDREN’S LAWYER:

Auslawyers

FILE NUMBER:

SYC

8257

2016

DATE DELIVERED:

11 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

20 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Anderson

SOLICITOR FOR THE RESPONDENT:

Doolan Wagner Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Auslawyers

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Within 14 days, the father provide the mother with the names of three (3) appropriately qualified practitioners who he nominates for the purpose of conducting family therapy between himself and the children. If requested by the father, the Independent Children’s Lawyer is granted leave to contact Dr R to obtain her recommendations as to practitioners who are appropriately qualified to provide such therapy.
Within seven (7) days of having received the names of the practitioners referred to in order 1 above, the mother nominate from that list the practitioner who is to provide the family therapy (“the family therapist”).
Within seven (7) days of the mother having nominated the family therapist, the parties shall contact the family therapist for the purposes of arranging the family therapy between the father and the children. Thereafter, the mother shall facilitate the children's attendance at such therapy, as recommended by the family therapist.
Leave is granted to the Independent Children's Lawyer to provide a copy of the Single Expert Report of Dr R dated 14 June 2018 to the family therapist.
The father shall initially meet the cost of the family therapy, with an…

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 Derrick and Hicks

Details

AGLC: Derrick and Hicks [2019] FamCA 2
Case: [2019] FamCA 2
Decision Date: 11 January 2019

CaseChat Overview and Summary

This matter concerned interim parenting orders sought by the father in relation to the parties' three children. The dispute arose from a persistently strained relationship between the parents and between the children and the father. The court acknowledged the assistance provided by the Independent Children's Lawyer, who was appointed on short notice.

The primary legal issue before the court was to determine appropriate interim parenting arrangements, specifically concerning family therapy and the father's time with the children, given the existing difficulties. The court was required to consider the children's welfare and the strained familial relationships in making its orders.

McClelland J ordered that the father nominate three qualified practitioners for family therapy within 14 days, from whom the mother would select one. The parties were then to arrange therapy, with the mother facilitating the children's attendance. The father was to initially bear the costs of this therapy, with an equal division to be considered in final property proceedings. Furthermore, existing consent orders regarding the father's time with the children were varied. The father was to spend up to four hours per week with the children, subject to reasonable requests that considered the children's views and the family therapist's recommendations. This time was to be supervised by an agreed children's contact service, with specific provisions for the location of contact and changeovers if agreement could not be reached.

Orders

Orders of the court

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Within 14 days, the father provide the mother with the names of three (3) appropriately qualified practitioners who he nominates for the purpose of conducting family therapy between himself and the children. If requested by the father, the Independent Children’s Lawyer is granted leave to contact Dr R to obtain her recommendations as to practitioners who are appropriately qualified to provide such therapy.

Within seven (7) days of having received the names of the practitioners referred to in order 1 above, the mother nominate from that list the practitioner who is to provide the family therapy (“the family therapist”).

Within seven (7) days of the mother having nominated the family therapist, the parties shall contact the family therapist for the purposes of arranging the family therapy between the father and the children. Thereafter, the mother shall facilitate the children's attendance at such therapy, as recommended by the family therapist.

Leave is granted to the Independent Children's Lawyer to provide a copy of the Single Expert Report of Dr R dated 14 June 2018 to the family therapist.

The father shall initially meet the cost of the family therapy, with an adjustment to be made in the final property proceedings between the parties, such that the cost incurred in respect to that therapy shall be shared equally between the parties.

Order 7 of the consent orders made on 28 August 2017 be varied, as follows:

That pending further order and on a without admissions basis, the father spend 2 hours per week with the children at a Children's Contact Service, the costs of same to be met by the father the children shall spend up to four (4) hours per week with the father in accordance with a reasonable request for such time made by the father, and for the purposes of the same, the following shall apply:

(a) In making such a reasonable request, the father is required to give proper consideration to:

(i) the views of the children, as communicated through the family therapist; and

(ii) the recommendations of the family therapist;

(b) The children’s time with the father shall be supervised by an agreed children’s contact service and, in the absence of such agreement, by B Group;

(c) The location/s of the children’s time the father shall be agreed between the parties in consultation with the nominated contact service provider and, in the absence of such agreement, the location shall be where the children last spent time with the father; and

(d) The changeover location/s for the children’s time with the father shall be as agreed between the parties in consultation with the nominated contact service provider and, in the absence of such agreement, the changeover location/s shall be where the changeover last occurred.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Order 7 of the consent orders made on 28 August 2017 be varied, as follows:That pending further order and on a without admissions basis, the father spend 2 hours per week with the children at a Children's Contact Service, the costs of same to be met by the father the children shall spend up to four (4) hours per week with the father in accordance with a reasonable request for such time made by the father, and for the purposes of the same, the following shall apply:(a)In making such a reasonable request, the father is required to give proper consideration to:(i)the views of the children, as communicated through the family therapist; and(ii)the recommendations of the family therapist;(b)The children’s time with the father shall be supervised by an agreed children’s contact service and, in the absence of such agreement, by B Group;(c)The location/s of the children’s time the father shall be agreed between the parties in consultation with the nominated contact service provider and, in the absence of such agreement, the location shall be where the children last spent time with the father; and(d)The changeover location/s for the children’s time with the father shall be as agreed between the parties in consultation with the nominated contact service provider and, in the absence of such agreement, the changeover location/s shall be where the changeover last occurred. This decision concerns interim parenting orders sought by the father in respect to the parties’ three children, X, born in 2005 and currently aged 14 years, Y, born 2006 and currently aged 12 years and Z, born in 2008 and currently aged 10 years. The father’s application is made in the context of the persistently strained relationship that exists between the parties, as well as between the children and the father. At the outset of this decision, I would like to express the Court’s appreciation to Legal Aid New South Wales for expeditiously arranging for an Independent Children’s Lawyer (“ICL”) to appear in these proceedings in circumstances, upon receiving a request for the same less than a month prior to the hearing. The Court has been greatly assisted by the submissions of the ICL in this matter. The father was born in 1954 and is currently aged 64 years. The mother was born in 1972 and is currently aged 46 tears. In January 2005, the parties commenced cohabitation. In 2005, X was born. In 2006, Y was born. In 2008, Z was born. In February 2015, the parties separated, but remained living at the former matrimonial home. In June 2015, the mother and the children moved out of the former matrimonial home. On 12 December 2016, the mother commenced these proceedings. On 28 August 2017, interim parenting orders were made by consent of the parties (“the consent orders”), as follows:1. That pursuant to Division 15.5.2 of the Family Law Rules 2004, that [Dr R] be appointed as single expert witness ("the Expert") to enquire into and report upon matters relating to the welfare of the children, [X] born … 2005, [Y] born … 2005 and [Z] born … 2008 ("the children"), and in preparing the report to the Court, the Expert be requested to consider the following matters:(a) whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;(b) any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views:(c) the relationship between the children and each other and with each of their parents and any other relevant persons:(d) the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent;(e) the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;(f) the capacity of each parent of any other person to provide for the needs of the children, including emotional and intellectual needs;(g) the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);(h) the effect on the children of any family violence to which they may have been exposed;(i) the effect on the children of spending equal time, or substantial and significant time, with each parent having regard to the parent’s current and future capacity to:i. implement such an arrangement; andii. communicate with each other and resolve difficulties that might arise.(j) the mental state and health of each of the parents insofar as it relates to parenting issues;(k) any other matter the Court Expert considers requires investigation to assist the Court in making Orders in the best interests of the children.2. That the respondent shall pay, in the first instance, the expert's fees for Dr R as and when they fall due, including any payment to trust that may be required by the Expert before work is commenced, and the applicant shall reimburse the respondent 50% of the Expert's fees within 30 days of the date of Orders being made finalising the financial claim by the applicant under the Family Law Act.3. That each party do all acts and things and sign all documents necessary to facilitate the preparation of the report by the Expert including attending upon and arranging for the children to attend upon the Expert.4. That each party forward to the Expert copies of all material filed by them in these proceedings not less than 14 days prior to the date of the first appointment with the Expert.5. That leave be granted to each party to have photocopy access to material produced under Subpoena for the purposes only of providing same to the Expert.6. That the hearing date on 28 August 2017 be vacated.7. That pending further order and on a without admissions basis, the father spend 2 hours per week with the children at a Children's Contact Service, the costs of same to be met by the father.8. That pending further order and on a without admissions basis, the father may communicate with the children by telephone or mobile phone as agreed, and failing agreement, between 7 and 8 PM each Tuesday and .Friday, and the mother shall do all things necessary and required to facilitate the availability of the children for the telephone calls.9. That the matter be listed for mention before a Registrar on a date as allocated by the court and noting that fallowing the receipt of the expert's report referred to herein each party reserves the right to seek allocation of an interim hearing date.