Dickens and Dickens and Anor (No 3) - [2014] FamCA 1228

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS & ANOR (NO 3)

[2014] FamCA 1228

FAMILY LAW – CHILDREN - Interlocutory Application – Where the mother sought the appointment of a therapist to provide support to the children – Where the Independent Children’s Lawyer supported the mother’s application – Where the father sought that he be able to spend unsupervised time with the younger child – Where the relationship between the older child and the father has broken down – Where the father opposed the continuation of either therapist who had previously treated the children – Orders made appointing one of the children’s previous therapists– Orders made for the continuation of an earlier order suspending time between the father and the younger child.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Dickens

1^ST RESPONDENT:

Mr Dickens

2^ND RESPONDENT:

Mr D

INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

16 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

16 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Adams, solicitor of Hamish Cumming Family Lawyers

FOR THE 1^ST RESPONDENT:

Mr Dickens in person

SOLICITOR FOR THE 2^ND RESPONDENT:

Mr Kertesz, solicitor of Delaneys Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan, solicitor of Moylan Family Lawyers

Orders

That pending further order there be no time spent between the child C born on … 2003 and his father.
That orders are made in accordance with paragraphs 2, 3 and 4 as amended of the Minute of Order filed in Court today by the mother, signed by [Johnston J] and placed with the Court papers as set out hereunder:-
2.Each of the parties forthwith do all such acts and things necessary to have the children [B born … 2001 and C born … 2003] attend upon Mr Q of V Org for counselling.
3. For the purpose of counselling referred to in order 2 above:
3.1The mother shall ensure the children’s attendance upon Mr Q;
3.2The Mother shall meet the cost of the children’s attendances upon Mr Q;
3.3The parties shall meet the cost of their own attendance with Mr Q;
3.4Each of the parties shall attend as and when requested by Mr Q; and
3.5Each of the parties shall follow and implement the recommendations of Mr Q.
4.Order 10 of the orders of 4 September 2014 be varied to provide for C to communicate with the father on his birthday, …, by the father telephoning C on … before 6:00 pm.
3. That all current applications are adjourned to 27 January 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 739 of 2010

Ms Dickens

Applicant

And

Mr Dickens

1^st Respondent

And

Mr D

2^nd Respondent

REASONS FOR JUDGMENT

These are…

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

Case: [2014] FamCA 1228
Decision Date: 16 September 2014

CaseChat Overview and Summary

In *Dickens and Dickens and Anor (No 3)*, Johnston J of the Family Court of Australia considered applications concerning the welfare of two children, B and C. The dispute involved the parents' arrangements for the children, particularly regarding their attendance at counselling and communication with their father.

The court was required to determine the terms of orders relating to the children's counselling, including who would facilitate their attendance, who would bear the costs, and the extent to which the parents would comply with the counsellor's recommendations. Additionally, the court had to consider variations to existing orders concerning the child C's communication with his father on his birthday.

Johnston J made orders reflecting a need for the children to attend counselling with a Mr Q of V Org, with the mother responsible for ensuring their attendance and meeting the costs of their sessions. Both parents were directed to attend counselling themselves and to implement the recommendations made by Mr Q. Crucially, pending further order, there was to be no time spent between the child C and his father. The court also varied a previous order to allow the father to telephone C on his birthday before 6:00 pm. All current applications were adjourned to a later date.

Orders

Orders of the court

That pending further order there be no time spent between the child C born on … 2003 and his father.

That orders are made in accordance with paragraphs 2, 3 and 4 as amended of the Minute of Order filed in Court today by the mother, signed by [Johnston J] and placed with the Court papers as set out hereunder:-

2. Each of the parties forthwith do all such acts and things necessary to have the children [B born … 2001 and C born … 2003] attend upon Mr Q of V Org for counselling.

3. For the purpose of counselling referred to in order 2 above:

3.1 The mother shall ensure the children’s attendance upon Mr Q;

3.2 The Mother shall meet the cost of the children’s attendances upon Mr Q;

3.3 The parties shall meet the cost of their own attendance with Mr Q;

3.4 Each of the parties shall attend as and when requested by Mr Q; and

3.5 Each of the parties shall follow and implement the recommendations of Mr Q.

4. Order 10 of the orders of 4 September 2014 be varied to provide for C to communicate with the father on his birthday, …, by the father telephoning C on … before 6:00 pm.

3. That all current applications are adjourned to 27 January 2015.

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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