Dickens and Dickens - [2011] FMCAfam 1421

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DICKENS & DICKENS

[2011] FMCAfam 1421

FAMILY LAW – Parenting – competing residence applications – children aged 10 and 8 years – entrenched high level conflict – family violence – father’s capacity to meet the children’s emotional needs – sole parental responsibility.

Family Law Act 1975 ss.4, 60B, 60CA, 60CC, 61DA

Jones v Dunkel (1959) 101 CLR 298

Applicant:

MR DICKENS

Respondent:

MS DICKENS

File Number:

SYC 739 of 2010

Judgment of:

Sexton FM

Hearing dates:

15, 16, 17 August, 27 and 28 October 2011

Date of Last Submission:

28 October 2011

Delivered at:

Sydney

Delivered on:

20 December 2011

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Ms M. Falloon

Solicitors for the Respondent:

Athena Touriki Solicitors

Counsel for the Independent Children’s Lawyer

Mr R. Maurice

Solicitors for the Independent Children’s Lawyer

Moylan Family Lawyers

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The children [X] born [in] 2001 and [Y] born [in] 2003 live with the Mother.
In the event the Children are living with the Father at the date of these Orders, the Mother collect the Children at 4.00p.m. on the date of these Orders from inside [R] police station.
The Mother have sole parental responsibility for the Children on condition that:
(a)Unless an emergency, the Mother advise the Father in writing at least a month in advance of any major decision she proposes to make, with the reasons for her proposed decision; and
(b)The Mother have regard to any issues raised by the Father in response, before finalising her decision; and
(c)The Mother notify the Father in writing when the final decision has been made.
The Father engage in counselling with a clinical psychologist or psychiatrist of his choice, for a minimum period of 12 months from the date of his first appointment, but for additional time as recommended by his therapist, such therapy to include at least 12 appointments, to address issues concerning his emotional health raised in the expert report of Dr R and in these Reasons for Judgment.
Within 2 calendar months, the Father provide the Independent Children’s Lawyer with the name and contact details of his psychologist/psychiatrist and the Independent Children’s Lawyer provide the psychiatrist/psychologist with a copy of Dr R’s report, a copy of these Orders and Reasons for Judgment, in advance of the Father’s first appointment.
Each party complete a Parenting after Separation course with an accredited agency in the 2012 calendar year.
Until the Father has complied with Orders (5)- (7), the Children spend time with the Father as follows:
(a)During school terms, on each alternate weekend from after school Friday until before school on Monday commencing on the second weekend of each school term in even numbered years, and the first weekend of each school term in odd numbered years;
(b)On Father’s Day from 9.00a.m. until 5.00p.m;
(c)On each of the children’s birthdays, in the event that the birthday falls on a school day, from the conclusion of…

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.

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Details

AGLC: Dickens and Dickens [2011] FMCAfam 1421
Case: [2011] FMCAfam 1421
Decision Date: 20 December 2011

CaseChat Overview and Summary

The parties to the proceedings were the parents of two minor children, [X] and [Y], and the matter before the court was a dispute over parenting arrangements. The case was heard in the Family Court of Australia. The central issues before the court were whether the children should live with the mother, how to allocate parental responsibility, and the specific arrangements for the father's visitation rights.

The court found that the children should live with the mother and that she should have sole parental responsibility, subject to certain conditions. These conditions included the mother notifying the father of any major decisions she proposes to make, considering any issues raised by the father, and informing him of the final decision. The court also ordered the father to engage in counselling for a minimum of 12 months to address his emotional health issues. Additionally, both parents were required to complete a Parenting after Separation course. Visitation rights for the father were carefully detailed, with specific times during school terms, holidays, and special occasions, and conditions for when these rights would be suspended.

The court's reasoning was based on the best interests of the children, considering their emotional and psychological well-being, as well as the parents' ability to provide a stable environment. The detailed parenting arrangements were designed to ensure that both parents had meaningful time with the children while also promoting a harmonious co-parenting relationship. The court concluded that the proposed arrangements would best serve the children's needs.

The final orders included discharging all previous parenting orders, specifying the living arrangements for the children, conditions for the mother's parental responsibility, the father's counselling requirements, the completion of a parenting course by both parents, detailed visitation schedules for the father, restrictions on negative remarks and discussions in the presence of the children, and measures to prevent the children from being removed from Australia. Both parents were also required to share the costs of the expert evidence provided in the proceedings.

Orders

Orders of the court

All previous parenting orders be discharged.

The children [X] born [in] 2001 and [Y] born [in] 2003 live with the Mother.

In the event the Children are living with the Father at the date of these Orders, the Mother collect the Children at 4.00p.m. on the date of these Orders from inside [R] police station.

The Mother have sole parental responsibility for the Children on condition that:

(a) Unless an emergency, the Mother advise the Father in writing at least a month in advance of any major decision she proposes to make, with the reasons for her proposed decision; and

(b) The Mother have regard to any issues raised by the Father in response, before finalising her decision; and

The Father engage in counselling with a clinical psychologist or psychiatrist of his choice, for a minimum period of 12 months from the date of his first appointment, but for additional time as recommended by his therapist, such therapy to include at least 12 appointments, to address issues concerning his emotional health raised in the expert report of Dr R and in these Reasons for Judgment.

Within 2 calendar months, the Father provide the Independent Children’s Lawyer with the name and contact details of his psychologist/psychiatrist and the Independent Children’s Lawyer provide the psychiatrist/psychologist with a copy of Dr R’s report, a copy of these Orders and Reasons for Judgment, in advance of the Father’s first appointment.

Each party complete a Parenting after Separation course with an accredited agency in the 2012 calendar year.

Until the Father has complied with Orders (5)- (7), the Children spend time with the Father as follows:

(a) During school terms, on each alternate weekend from after school Friday until before school on Monday commencing on the second weekend of each school term in even numbered years, and the first weekend of each school term in odd numbered years;

(b) On Father’s Day from 9.00a.m. until 5.00p.m;

(c) On each of the children’s birthdays, in the event that the birthday falls on a school day, from the conclusion of school until 6.00p.m. or in the event that the birthday falls on a non-school day, from 12 noon until 5.00p.m;

(d) For half of the school holiday periods at the end of Terms 1, 2 and 3, being the second half in 2012 and all even numbered years and the first half in 2013 and all odd numbered years, commencing at 10.00a.m. on the first full day of the holidays and ending at 5.00p.m. on the last full day of the holidays, with changeover to occur at 6.00p.m. on the middle of those two days, unless otherwise agreed;

(e) During the Christmas school holiday period in 2011/12, from 6.00p.m. on Sunday 15 January 2012 until 6.00p.m. on Sunday 29 January 2012;

(f) Except as provided in Order (8)(e), for half the Christmas school holiday period, being the first half in the 2012/13 school holiday period and alternate years thereafter, and the second half in the 2013/14 school holiday period and alternate years thereafter, commencing at 10.00a.m. on the first full day of the holidays (deemed Day 1 of the holidays) and ending at 5.00p.m. on the last Sunday of the school holidays (deemed the last day), with changeover to take place at 6.00p.m. on the middle day between Day 1 and the last day, or if two middle days, at 6.00p.m. on the first of the two middle days, unless otherwise agreed; and

(g) At any other or alternative time as agreed between the parties.

Each party ensure each child has liberty to telephone or communicate electronically with the other party at any reasonable time.

10.

Upon receipt by the Mother of a report from the Father’s treating psychiatrist/psychologist verifying the Father’s compliance with Order (5), and confirming that the Father has successfully addressed his emotional issues raised by Dr R as outlined in his report and in these Reasons for Judgment, the Children spend time with the Father, unless otherwise agreed, as follows:

(a) During school terms, on each alternate weekend from after school Thursday until before school on Monday commencing on the second weekend of each school term in even numbered years, and the first weekend of each school term in odd numbered years; and

(b) For half of each school holiday period as specified in Order (8).

11.

In the event that the children are in the Father’s care in accordance with these orders, the children’s time with the Father be suspended:

(a) On Mother’s Day between 9.00a.m. and 5.00p.m; and

(b) On each of the children’s birthdays between after school and 6.00p.m. if a school day and between 12 noon and 5.00p.m. if a non-school day.

12.

Unless otherwise provided, changeover occur at the children’s school if a school day and if a non-school day, the Mother deliver the children to the Father at the commencement of time and the Father deliver the children to the Mother at the conclusion of time and each party remain outside the other’s residence for the purpose of changeover.

13.

Each party be restrained from:

(a) Making any negative remarks about the other party or any member of the other party’s family or any partner of either party, in the presence and/or hearing of the Children, such Order to include verbal, written or electronic means including email and text message; and

(b) From discussing these proceedings in the presence/and or hearing of the Children, or from showing the Children any documents relating to these proceedings.

14.

Until [Y] attains 16 years, the Applicant and the Respondent, by themselves, their servants or their agents be hereby restrained from removing or attempting to remove the Children [X] born [in] 2001 (male) and [Y] born [in] 2003 (male) from the Commonwealth of Australia.

15.

The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said Children from the Commonwealth of Australia.

16.

Until further order the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said Children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

17.

Each party meet half the costs of Dr R giving evidence in these proceedings by paying the amount requested by the Independent Children’s Lawyer to the Trust Account of the Independent Children’s Lawyer within 7 days of such request.

18.

The appointment of the Independent Children’s Order be discharged upon the Father’s compliance with Order (6) or within 3 calendar months, whichever is the earlier.

19.

Pursuant to section 65DA(2) 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 Annexure 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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