Gilliard and Gilliard - [2015] FamCA 18

FAMILY COURT OF AUSTRALIA

GILLIARD & GILLIARD

[2015] FamCA 18

FAMILY LAW – CHILDREN – Best interests – Magellan list – Parental responsibility – With whom a child lives – With whom a child spends time – Where there are three children of the marriage – Where the younger two children live with the mother and the older child with the father – Where the mother alleges the father has engaged in family violence – Where the father alleges that the mother has hit the children, yelled at the children and pinched their ears – Where the single expert found that the father has some narcissistic personality traits – Where the single expert opined that the father’s reliance on the children to meet his needs for affirmation amounts to emotional abuse of the children – Where the single expert recommended that there should be limits placed on the amount of time the children spend with their father – Where it was found that the father engaged in family violence – Where it was found that the children would not face an unacceptable risk in the care of the mother – Where it is not in the best interests of the children for their parents to share parental responsibility for them – Where it is not in the best interests of the children for parenting arrangements to be put in place that enable a meaningful relationship with both parents – Where the Court is satisfied that the mother has a better capacity to care for the children than the father – Orders made for the mother to have sole parental responsibility and for the children to live with her – Orders made for the children to spend no time with the father for a period of three months before spending short amounts of supervised time with the father, increasing to unsupervised time after six months.

Family Law Act 1975 (Cth) – Part VII, ss 4AB(1), 60B, 60CA, 60CC , 61B, 61C, 61DA, 65AA, 65DAA

Goode and Goode (2006) FLC 93-286
Lansa & Clovelly [2010] FamCA 80
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Gilliard

RESPONDENT:

Mr Gilliard

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Parramatta Family Law

FILE NUMBER:

PAC

383

2008

DATE DELIVERED:

23 January 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

8, 9, 10 & 11 October and 23 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Saw

SOLICITOR FOR THE APPLICANT:

Law Society of New South Wales

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

Rachel Stubbs & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Kennedy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Parramatta Family Law

Orders

That the following parenting orders are made in relation to the children L born … 2002 and, B and S both born … 2005.
That all previous parenting orders are discharged.

Parental Responsibility

That the mother shall have sole parental responsibility for the children.

Live with

That 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 Gilliard and Gilliard

Details

AGLC: Gilliard and Gilliard [2015] FamCA 18
Case: [2015] FamCA 18
Decision Date: 23 January 2015

CaseChat Overview and Summary

In the matter of Gilliard and Gilliard, Johnston J made parenting orders concerning the children L, B, and S, discharging all previous orders. The dispute centred on the arrangements for the children's living situation, time spent with each parent, communication between the parents and children, and the involvement of each parent in the children's lives.

The court was required to determine the most appropriate parenting arrangements for the children, considering the welfare and best interests of L, B, and S. This involved deciding on parental responsibility, where the children would live, the extent and nature of the father's time with the children, communication protocols, and specific restraints to be placed on both parents. The court also had to consider the need for therapeutic intervention for the mother and the children, and the allocation of costs associated with the proceedings, particularly the Independent Children's Lawyer.

Johnston J ordered that the mother have sole parental responsibility and that the children live with her. The father was to have no time with the children for an initial three-month period, followed by a phased-in approach to supervised and then unsupervised time. Specific communication arrangements were established, including monitored telephone calls. The court also imposed several restraints on the father, including restrictions on discussing the proceedings with the children and contacting the mother, and on attending the children's school. Both parents were restrained from denigrating the other. The mother was directed to seek therapy for herself and the children, with the father to meet half the costs of the Independent Children's Lawyer.

Orders

Orders of the court

That the following parenting orders are made in relation to the children L born … 2002 and, B and S both born … 2005.

That all previous parenting orders are discharged.

Parental Responsibility

That the mother shall have sole parental responsibility for the children.

Live with

That the children shall live with the mother.

Spend time with

That the father shall spend no time with the children for a period of three (3) consecutive months from the making of these orders.

That from the conclusion of the above three month period, the father shall spend time with the children as follows:

a. For the next six (6) months, two hours per month at a supervised contact centre (with the father able to bring extended paternal family also) on Sundays if the centre is available on Sundays;

b. Then from 10.00 am to 1.00 pm on the first Sunday of every month for a period of twelve (12) consecutive months, unsupervised;

c. Then from 10.00 am to 4.00 pm on the first Sunday of every month, unsupervised.

Communication

That the father shall communicate with the children by telephone each Thursday commencing on 19 February 2014 between 8.00 pm and 8.30 pm, and for such periods the mother or another adult as nominated by the mother shall monitor the telephone conversations between the father and the children and each of them.

Changeover

That, except for time spent at the contact centre, for the purposes of changeover, the parents shall meet at the McDonalds family restaurant closest to the suburb at which the mother may be residing.

Therapy / Counselling

That the mother shall, within seven (7) days of the making of these orders, contact her General Practitioner doctor, to obtain an appropriate referral to a clinical psychologist or psychiatrist who specialises in issues surrounding family violence.

10.

That upon the mother obtaining the appropriate referral in compliance with order 9 above, the mother shall thereafter do the following:

a. Contact the therapist and arrange the earliest appointment with the therapist;

b. Provide the therapist with a copy of the report prepared by Dr K dated 8 April 2013 and the therapist is to be able to contact and discuss the family with Dr K prior to the therapy commencing;

c. Commence therapy with the therapist in accordance with the directions of the therapist including arranging attendance of the children as directed by the therapist and until the therapist advises the mother that she and the children are no longer required to attend the therapy; and

d. Meet the costs associated with the therapy.

Restraints

11.

That the father is restrained from discussing with the children and each of them these proceedings or any matter concerning the mother’s parenting of the children.

12.

That the father is restrained from communicating with, telephoning, contacting or attempting to contact the children otherwise than as specified in these orders.

13.

That the father is restrained from communicating with, telephoning, contacting or attempting to contact the mother.

14.

That the father is restrained from attending the school which the children or any of them attend at any time.

15.

That the mother is restrained from physically chastising the children or any of them.

16.

That both parties are restrained from denigrating the other parent or a member of the other parent’s family in the hearing or presence of the children or any of them.

School

17.

That the mother authorise the children's school to send to the father directly, copies of the children's school reports, newsletters, photographs and other material parents are able to have access to, and obtain from, the children's school.

Medical

18.

That the mother notify the father of any significant health issues relating to the children or any of them, or hospitalisation of any of them.

Explanation

19.

That the Independent Children’s Lawyer is to explain to the children forthwith in brief terms and in the form as suggested by Dr K the reasons for these orders.

Costs

20.

That the father shall meet one half of the costs of the Independent Children’s Lawyer, being $5333.90 within three (3) months of the making of these orders.

21.

That no order for costs of the Independent Children’s Lawyer is made against the mother.

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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