Festa and Comer - [2016] FamCA 430

FAMILY COURT OF AUSTRALIA

FESTA & COMER

[2016] FamCA 430

FAMILY LAW – CHILDREN – final orders – where the parties are in dispute as to the parenting arrangements of the child – where the father alleges the mother suffers from a long history of mental illness and therefore she is a risk to the child – where of recent date the mother’s time with the child has been subject to supervision – where the Court finds that the mother’s mental health is not in and of itself a barrier to the mother having a relationship with the child – where there is no evidence to suggest the child is at risk of physical harm – where orders are made for the child to live with the father and for him to have sole parental responsibility – where the mother is required to undertake therapy and upon successful completion the child’s time with the mother shall be reinstated.

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

Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Cotton & Cotton (1983) FLC 91-330
Fitzpatrick & Fitzpatrick (2005) FLC 93-227
M v M (1988) 166 CLR 69
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Festa

RESPONDENT:

Ms Comer

INDEPENDENT CHILDREN’S LAWYER:

Norman Waterhouse Lawyers

FILE NUMBER:

ADC

3218

2014

DATE DELIVERED:

2 June 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

7, 8, 9 and 10 December 2015 and 24 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dillon

SOLICITOR FOR THE APPLICANT:

Legal Services Commission of South Australia

COUNSEL FOR THE RESPONDENT:

Mr Roberts

SOLICITOR FOR THE RESPONDENT:

Ian Charman and Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Norman Waterhouse Lawyers

Orders

That the father have sole parental responsibility for B born … 2010 (“the child”).
That the child live with the father.
That the mother be at liberty to send cards, letters and gifts to the child on no more than one (1) occasion each month and at a postal address provided by the father and that the father do ensure the same are read to and provided to the child.
That the mother be authorized to receive direct from the child’s school (at her expense) information regarding the child’s attendance and progress, including but not limited to school reports, school photos and parent newsletters.
That the father do provide to the mother not less than three (3) current photos of the child on each occasion with such photos to be forwarded every three (3) months to a postal address provided by the mother.
That at her election the mother attend upon an appropriately qualified mental health professional for the purpose of engaging in dialectical behavioural therapy as recommended by Dr C in his report dated 4 February 2016, with the mother to provide the…

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 Festa and Comer

Details

AGLC: Festa and Comer [2016] FamCA 430
Case: [2016] FamCA 430
Decision Date: 2 June 2016

CaseChat Overview and Summary

This case concerned parenting orders made by Berman J in the Family Court of Australia. The dispute involved the father and mother of a child, B, born in 2010, regarding the arrangements for B's upbringing and contact with both parents.

The court was required to determine the primary caregiver for the child, the nature and extent of contact the mother would have with the child, and the therapeutic interventions necessary to facilitate a healthy parent-child relationship. Key issues included the mother's engagement with mental health treatment, the supervision of contact, and the gradual reintroduction of unsupervised time between the mother and child.

Berman J ordered that the father have sole parental responsibility and that the child live with him. The mother was granted limited liberty to send cards and gifts, and to receive school information. Crucially, the mother was ordered to undertake dialectical behavioural therapy, with subsequent joint therapy for both parents and the child contingent on a positive report from her therapist. The court outlined a phased approach to contact, commencing with supervised sessions, progressing to unsupervised time, and detailing arrangements for holidays and special occasions, all while imposing mutual restraining orders against abusive behaviour.

Orders

Orders of the court

That the father have sole parental responsibility for B born … 2010 (“the child”).

That the child live with the father.

That the mother be at liberty to send cards, letters and gifts to the child on no more than one (1) occasion each month and at a postal address provided by the father and that the father do ensure the same are read to and provided to the child.

That the mother be authorized to receive direct from the child’s school (at her expense) information regarding the child’s attendance and progress, including but not limited to school reports, school photos and parent newsletters.

That the father do provide to the mother not less than three (3) current photos of the child on each occasion with such photos to be forwarded every three (3) months to a postal address provided by the mother.

That at her election the mother attend upon an appropriately qualified mental health professional for the purpose of engaging in dialectical behavioural therapy as recommended by Dr C in his report dated 4 February 2016, with the mother to provide the health professional a copy of Dr C’s report, his earlier reports and those of her treating psychiatrist Dr A together with a copy of the reasons published this day and a copy of these orders and that she undertake not less than ten (10) therapeutic sessions with the said nominated mental health professional.

That subject to the provision of a report by the provider of the said therapy pursuant to order 6 indicating that the therapy has effected a meaningful and positive change in the mother’s ability to respond appropriately to stressors, the parties with the assistance of the Independent Children’s Lawyer (“ICL”) are to attend upon a therapist with the focus of such therapy to be as follows:-

(a) To create a healthy parent and child relationship with the mother;

(b) To reinforce with the child that he is not at risk from the mother;

That the parties participate in such therapy on the basis that the said therapy shall be on such occasions and with such frequency as shall be determined by the therapist PROVIDED THAT the said therapy shall be completed within a period of twelve (12) weeks and that at any time spent between the mother and the child during the said period of therapy shall be by arrangement and agreement between them and as may be directed by the said therapist but not otherwise.

Other than assisting the implementation of the therapy the appointment of the ICL shall be discharged.

10.

That the father will do all things necessary to cause the child to attend upon the said therapist and thereafter facilitate all sessions.

11.

That at the conclusion of the therapy period and subject to the availability of the therapist, the child shall spend time with the mother for two (2) hours on one (1) occasion in each fortnight for a period of not more than three (3) such occasions PROVIDED THAT the said therapist shall supervise the time between the child and his mother.

12.

If the said therapist is not able to or be unwilling to supervise the time to be spent between the mother and the child as provided for in these orders THEN in the alternative and pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) the Manager of Child Dispute Services for the Family Court of Australia at Adelaide shall nominate a family consultant to supervise compliance by the parties with the parenting orders made herein and to render to the parties such assistance as may be reasonably required to aide in the carrying out of the said order.

13.

That the mother will at first instance do all things necessary to seek government assistance, benefit or allowance in respect of the costs of the said therapist or the involvement of a family consultant nominated pursuant to s 65L of the Act.

14.

That at the conclusion of the three (3) supervised periods between the mother and the child as provided for herein, the parties shall forthwith enrol in a contact centre for supervised contact to begin as soon as practicable thereafter and at the contact centre that is most likely able to assist with such period of supervised contact to be not less than six (6) in number and if possible at a frequency of one (1) visit per fortnight.

15.

That at the conclusion of six (6) supervised visits at the contact centre the child shall spend time with the mother unsupervised as follows:-

(a) On the Saturday of each alternate weekend from 10 am to 5 pm for six (6) periods;

(b) Thereafter, on each alternate weekend from 10 am Saturday to 5 pm Sunday for a period of six (6) periods;

(c) Thereafter, on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday;

(d) As and from the commencement of overnight time between the child and the mother, half of each of the short end of term holidays between such times and dates as may be agreed and in default of agreement the first half;

(e) As and from the commencement of overnight time between the child and the mother on a week about basis throughout the Christmas school holiday period;

(f) Special occasions such as Christmas, Easter, the child’s birthday, the birthdays of the parties, Mother’s Day and Father’s Day as may be agreed.

16.

For the purpose of these orders any handover not at a contact centre or the child’s school shall be inside the Suburb D Street Police Station unless otherwise agreed.

17.

That the father keep the mother advised of the name and address of the child’s treating medical practitioners and any changes thereto and shall advise the mother in writing of any hospital admission in relation to the child and shall provide such authority to enable the mother to contact such treating medical practitioner and obtain information in respect of the child’s health, ongoing medical treatment or other health related matters affecting the child and each of them.

18.

That the parties are restrained and an injunction is granted restraining each of them from abusing, insulting, belittling, harassing or threatening the other or in the presence or hearing of the child or either of them and from permitting any other person to do so in the presence or hearing of the child or either of them.

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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