DUNCAN & GRIFFITH - [2013] FamCA 25

FAMILY COURT OF AUSTRALIA

DUNCAN & GRIFFITH

[2013] FamCA 25

FAMILY LAW - CHILDREN – Parental Responsibility –– Where Father has failed to show he is capable of advancing the welfare of the children – Mother to have sole parental responsibility of children.

FAMILY LAW - CHILDREN – With whom the children spend time – Best interests of the children – Where Father has not shown he is capable of increasing and reinforcing his relationship with the children on an unsupervised basis – Children to live with Mother – Children to spend supervised time with Father – Father required to show that unsupervised contact will be for the benefit of the children and his relationship with the children.

APPLICANT:

Ms Duncan

RESPONDENT:

Mr Griffith

INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley, Solicitor

FILE NUMBER:

BRC

1105

2011

DATE DELIVERED:

24 January 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

24 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The Applicant Mother appearing in person

COUNSEL FOR THE RESPONDENT:

There being no appearance by the Respondent Father

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Ashcroft of Counsel appearing for the Independent Children’s Lawyer

Orders

ON AN UNDEFENDED BASIS IT IS ORDERED:

That all previous Orders be discharged.

That the children, M born … November 2001 and E born … September 2003, live with the Mother.

That the Mother have sole parental responsibility for the children.

That the Father spend supervised time with the children at B Contact Centre on the Gold Coast (the ‘Contact Centre’) for not less than two (2) hours every eight (8) weeks and that the parties equally shall share the cost of the supervised time.

That the Father is hereby restrained from using alcohol or illicit drugs for twelve (12) hours before contact with the children at the Contact Centre.

The Father shall inform the Mother of his mobile telephone number and shall accept calls from the Mother in relation to the Father spending time with the children at the Contact Centre.

That the Father communicate with the children between 5:00 pm and 5:30 pm (Queensland time) each Monday by telephoning the Mother on her nominated telephone number and the Mother shall facilitate the telephone call and ensure that the children have privacy during telephone time with the Father.

That the Mother authorise any school attended by the children to release directly to the Father school reports regarding the children, except their residential address.

That the Father is restrained from attending at the Mother’s residence, the children’s school or asking the children to disclose their residential address.

That neither party shall denigrate the other in the presence or hearing of the children or permit others to do so.

That upon the Father providing the Mother with a certificate of his completion of the Triple-P Parenting Course ordered on 10 October 2011, the Father is at liberty to file an application seeking orders for unsupervised time with the children and such application is to…

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: DUNCAN & GRIFFITH [2013] FamCA 25
Case: [2013] FamCA 25
Decision Date: 24 January 2013

CaseChat Overview and Summary

This matter concerned orders made by Bell J in the Family Court of Australia concerning the living arrangements and parental responsibilities for two children, M and E. The proceedings were heard on an undefended basis, indicating that the Father did not participate in the hearing or present any material.

The primary legal issues before the court were to determine the children's residence, the allocation of parental responsibility, and the nature and extent of the Father's time with the children. The court was also required to consider orders relating to communication between the Father and children, the disclosure of school reports, and restrictions on the Father's conduct concerning the children and the Mother.

Bell J ordered that the children live with the Mother and that the Mother have sole parental responsibility. The Father was granted supervised time with the children for a minimum of two hours every eight weeks, with the costs to be shared equally. The court imposed specific conditions on the Father, including a prohibition on alcohol or illicit drug use for twelve hours prior to contact, and obligations regarding his mobile telephone number and communication with the Mother. Further orders addressed communication with the children via telephone, the release of school reports (excluding residential addresses), and restrictions on the Father attending the Mother's residence or the children's school. The court also included a provision allowing the Father to seek unsupervised time upon completion of a parenting course. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

ON AN UNDEFENDED BASIS IT IS ORDERED:

That all previous Orders be discharged.

That the children, M born … November 2001 and E born … September 2003, live with the Mother.

That the Mother have sole parental responsibility for the children.

That the Father spend supervised time with the children at B Contact Centre on the Gold Coast (the ‘Contact Centre’) for not less than two (2) hours every eight (8) weeks and that the parties equally shall share the cost of the supervised time.

That the Father is hereby restrained from using alcohol or illicit drugs for twelve (12) hours before contact with the children at the Contact Centre.

The Father shall inform the Mother of his mobile telephone number and shall accept calls from the Mother in relation to the Father spending time with the children at the Contact Centre.

That the Father communicate with the children between 5:00 pm and 5:30 pm (Queensland time) each Monday by telephoning the Mother on her nominated telephone number and the Mother shall facilitate the telephone call and ensure that the children have privacy during telephone time with the Father.

That the Mother authorise any school attended by the children to release directly to the Father school reports regarding the children, except their residential address.

That the Father is restrained from attending at the Mother’s residence, the children’s school or asking the children to disclose their residential address.

10.

That neither party shall denigrate the other in the presence or hearing of the children or permit others to do so.

11.

That upon the Father providing the Mother with a certificate of his completion of the Triple-P Parenting Course ordered on 10 October 2011, the Father is at liberty to file an application seeking orders for unsupervised time with the children and such application is to be served on the Mother as required by the Family Court Rules.

12.

That the Independent Children’s Lawyer be discharged.

13.

Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION:

The Father was informed by letter dated 10 January 2013 from the Independent Children’s Lawyer of the consequence of Order 3 of the Orders made on

20 July 2012, and that in the absence of any trial material filed by the Father, the matter could proceed on an undefended basis.

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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