Dover and Rogers - [2016] FamCA 392

FAMILY COURT OF AUSTRALIA

DOVER & ROGERS

[2016] FamCA 392

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child communicates – With whom a child spends time – Allegations of sexual abuse – High level of conflict – Orders that children live with mother and spend time with the father

Family Law Act 1975 (Cth) ss 60CC(2) and 60CC(3)

Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038

APPLICANT:

Mr Dover

RESPONDENT:

Ms Rogers

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

FILE NUMBER:

HBC

1076

2010

DATE DELIVERED:

24 May 2016

PLACE DELIVERED:

Canberra

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

22, 23, 24, 25 & 29 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Grant Tucker

SOLICITOR FOR THE APPLICANT:

Grant Tucker

COUNSEL FOR THE RESPONDENT:

Ms Kate Mooney

SOLICITOR FOR THE RESPONDENT:

Rae & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Peter Briffa

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

Mr Dover (‘the father’) and Ms Rogers (‘the mother’) have equal shared parental responsibility for B born … 2006 and C born … 2008 (together ‘the children’) and in the context of that equal shared parental responsibility each parent is entitled:-
a.to receive any information normally available to and/or provided to parents by the children’s school; and
b.to obtain and have available information normally provided to parents by health care professionals to parents. Nothing is this provision shall impose upon any of the children’s treating counsellors, therapists or psychologists as would undermine or inhibit the professional relationship with and treatment of such child or children.
The children shall live with, spend time with and communicate with the mother and father as set out in these orders or as is otherwise agreed in writing by the parents.
The children shall live with the mother.
The Court makes no orders that the father spend time with the children.
The father shall be entitled to send cards, letters and presents to the children including but not limited to birthdays, Easter and Christmas and the mother shall ensure that any such items are given to the children.
The mother shall encourage the children to send cards, letters and presents to the father and his family including but not limited to birthdays, Easter and Christmas
The mother shall encourage and facilitate reasonable time between the children and their brother D.
The mother shall facilitate reasonable time between the children and their paternal grandmother and aunts and accommodate reasonable request is made by the children and the paternal grandmother and aunts.
The parties shall keep the other informed of his/her residential address, email address and telephone numbers and the like.
The parents will do all acts and things to ensure that:-
a.the children continue to have therapy with Dr E at a frequency determined by that therapist;
b.the mother and the father shall be responsible for payment of Dr E’s fees on an alternating basis commencing with…

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 Dover and Rogers

Details

AGLC: Dover and Rogers [2016] FamCA 392
Case: [2016] FamCA 392
Decision Date: 24 May 2016

CaseChat Overview and Summary

In the matter of *Dover and Rogers*, Benjamin J of the Family Court of Australia made orders concerning the parental responsibility and time arrangements for two children, B and C. The dispute centred on the parents' ability to co-parent effectively, particularly in relation to the children's schooling, healthcare, and ongoing therapeutic needs.

The court was required to determine the extent of equal shared parental responsibility, the specific arrangements for the children to live with, spend time with, and communicate with each parent, and the conditions under which each parent could access information about the children's education and health. Further issues included the facilitation of contact with extended family members, the children's ongoing therapy, and the parents' obligations regarding travel and communication. The court also addressed the need for both parents to undertake anger management and post-separation parenting courses.

Benjamin J made orders establishing equal shared parental responsibility, entitling each parent to receive information from the children's school and healthcare providers, subject to therapeutic considerations. The children were ordered to live with the mother, with no orders made for the father to spend time with them. The orders detailed provisions for the exchange of cards and presents, encouraged communication with extended family, and mandated that both parents facilitate the children's ongoing therapy with Dr E, sharing the costs and receiving written feedback. The court also stipulated notice periods and communication requirements for interstate and overseas travel, prohibited denigration of either parent, and required ongoing notification of the children's care providers and significant welfare issues. Crucially, both parents were ordered to complete anger management and post-separation parenting courses within twelve months, with certificates of completion to be provided to the other parent. Leave was granted for the father to seek a change in the children's residence if the mother failed to reasonably support or promote time with the father as recommended by Dr E.

Orders

Orders of the court

Mr Dover (‘the father’) and Ms Rogers (‘the mother’) have equal shared parental responsibility for B born … 2006 and C born … 2008 (together ‘the children’) and in the context of that equal shared parental responsibility each parent is entitled:-

a. to receive any information normally available to and/or provided to parents by the children’s school; and

b. to obtain and have available information normally provided to parents by health care professionals to parents. Nothing is this provision shall impose upon any of the children’s treating counsellors, therapists or psychologists as would undermine or inhibit the professional relationship with and treatment of such child or children.

The children shall live with, spend time with and communicate with the mother and father as set out in these orders or as is otherwise agreed in writing by the parents.

The children shall live with the mother.

The Court makes no orders that the father spend time with the children.

The father shall be entitled to send cards, letters and presents to the children including but not limited to birthdays, Easter and Christmas and the mother shall ensure that any such items are given to the children.

The mother shall encourage the children to send cards, letters and presents to the father and his family including but not limited to birthdays, Easter and Christmas

The mother shall encourage and facilitate reasonable time between the children and their brother D.

The mother shall facilitate reasonable time between the children and their paternal grandmother and aunts and accommodate reasonable request is made by the children and the paternal grandmother and aunts.

The parties shall keep the other informed of his/her residential address, email address and telephone numbers and the like.

10.

The parents will do all acts and things to ensure that:-

a. the children continue to have therapy with Dr E at a frequency determined by that therapist;

b. the mother and the father shall be responsible for payment of Dr E’s fees on an alternating basis commencing with the mother;

c. Dr E is provided copy of these Orders and the reasons upon which the orders were based; and

d. the Court requests of Dr E that any feedback by her be made in writing and sent to both parents, and for that purpose the parties shall each provide Dr E with that party’s email address. Such request should not impose any requirement on Dr E to provided information or reports contrary to the therapeutic needs of the child or the children.

11.

That in the event that either party (including the father if by agreement or order of a court) seeks to take the children on an interstate or overseas holiday the following shall apply:-

a. the travelling parent shall provide the other parent with a minimum of fourteen (14) days’ notice in respect of an interstate holiday and twenty eight (28) days’ notice in respect of an overseas holiday;

b. prior to departure the travelling parent shall provide the other with copies of the return travel itinerary and contact details for the children; and

c. the travelling parent shall ensure that the children have telephone or other electronic communication with the other parent during those times of travel.

12.

Neither parent will denigrate the other parent or members of that parent’s family in the hearing or presence of the children (or any one of them) nor allow any third person to do so.

13.

Each parent shall keep other parent advised of the names of any schools, therapists, doctors, other care providers and extracurricular activities attended by the children, in advance if possible if not within one day of the appointment, treatment or enrolment or commencement of such care or activity.

14.

Each parent must keep the other reasonably informed as to any significant health or welfare issues relating to the children, in advance if feasible or within one day otherwise.

15.

The mother make all reasonable attempts to facilitate reasonable time between D and the children, or either of them, should that request be made by D or by either of the children. Nothing in this order imposes any obligation on D’s mother.

16.

BY CONSENT both the father and mother shall separately do all acts and things necessary to enrol in, attend, participate and complete an Anger Management Course operated by a reputable Government or non-Government Agency (such as Relationships Australia or CatholicCare) within twelve (12) months from the date of these Orders. Each parent shall be responsible for payment of his or her costs for participating in such course and shall provide a certificate to the other parent within six (6) weeks of completing such course. The certificate must contain details of the course, the course provider, the length of the course and that the parent attended regularly and participated.

17.

Both the father and mother shall separately do all acts and things necessary to enrol in, attend, participate and complete a post separation parenting course operated by a reputable Government or non-Government Agency (such as Relationships Australia or CatholicCare) within twelve (12) months from the date of these Orders. Each parent shall be responsible for payment of his or her costs for participating in such course and shall provide a certificate to the other parent within six (6) weeks of completing such course. The certificate must contain details of the course, the course provider, the length of the course and that the parent attended regularly and participated.

18.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

19.

All outstanding parenting applications be dismissed, except as to costs.

20.

Any costs applications to be made in accordance with the Family Law Rules 2004 (Cth).

21.

At the expiry of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

22.

The Independent Children’s Lawyer is requested to explain these Orders to the children as soon as practicable after the Orders have been made, noting that:-

a. the method and content of that event being in the Independent Children's Lawyer’s discretion;

b. the appointment of the Independent Children's Lawyer is extended for 35 days from the date of these Orders for that purpose; and

c. the parties will do any acts and things reasonably necessary to facilitate the children meeting with the Independent Children's Lawyer.

23.

Leave is given for the father to commence proceedings in a court exercising jurisdiction under the Family Law Act 1975 (Cth) for change of the place of residence for the children, in the event that the mother does not reasonably support or promoting time between the children and the father a recommended by Dr E.

IT IS CERTIFIED

24.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel and counsel to attend.

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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