FAMILY COURT OF AUSTRALIA
| GRIVAS & KADER AND ORS | [2015] FamCA 1097 |
| FAMILY LAW – CHILDREN – Best interest of the child – With whom the child lives – With whom the child spends time – Parental responsibility – Where the Department of Family and Community Services holds parental responsibility, the child is in the primary care of the maternal grandmother and spends time with the father and mother – History of drug use and family violence between the parents – Where there is expert evidence of the mother’s untreated mental health issues and risks to the child in the mother’s care – Best interest considerations – Where the need to protect the child from harm is of great significance in the matter – Where orders made for the child to transition into the father’s care, for the father to hold parental responsibility after a period of time, the father to accept the ongoing supervision of the Department for a period of time – Where orders made for the mother to spend limited supervised time with the child. FAMILY LAW – COSTS - Child representative – Consideration of s 117 and factors in s 117(2A) – Financial circumstances of the parties – Where the independent children’s lawyer played a significant role in the proceedings – Mother and father each pay the independent children’s lawyer’s costs. FAMILY LAW – PRACTICE AND PROCEDURE – Single expert’s fees – Rules 1.12 and 15.47 – Department has agreed to pay one third – Not appropriate for the maternal grandmother to contribute – Father and mother overall each contribute one third of the expert’s fees. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 117 Family Law Rules 2004 (Cth) rr 1.12, 15.47 |
| Aldridge & Keaton [2009] FamCAFC 229 |
| APPLICANT: | Mr Grivas |
| 1st RESPONDENT: | Ms Kader |
2nd RESPONDENT: INTERVENER: | Mrs Kader Department of Family and Community Services |
| FILE NUMBER: | PAC | 811 | of | 2013 |
| DATE DELIVERED: | 10 December 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 9, 10, 11 and 12 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fermanis |
| SOLICITOR FOR THE APPLICANT: | H C Stathis & Co Solicitors |
| COUNSEL FOR THE 1ST RESPONDENT: | Litigant in person |
| COUNSEL FOR THE 2ND RESPONDENT: COUNSEL FOR THE INTERVENER: | Litigant in person Ms Neville |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitor’s Office |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
Orders
That all previous parenting orders in relation to the child L born … 2011 (“the child”) be discharged.
That for a period of 3 months from the date of these orders, the Minister for Family and Community Services shall have sole parental responsibility…
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- AGLC
- Grivas and Kader & Ors [2015] FamCA 1097
- Case
- [2015] FamCA 1097
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child, specifically with whom the child should live and spend time, and who should hold parental responsibility. The court also considered applications regarding the costs of the independent children's lawyer and the fees of a single expert witness.
Foster J found that the need to protect the child from harm was of paramount significance. Applying the best interests considerations, the court ordered a phased transition of parental responsibility to the father, commencing with the Minister for Family and Community Services holding sole parental responsibility for an initial three-month period. During this time, the child was to live as directed by the Department, potentially with the father. Following this period, the father was to hold sole parental responsibility and the child was to live with him, subject to nine months of supervision by the Department. The child was to spend time with the maternal grandmother as agreed, or on the first weekend of each month. Contact with the mother was to be limited, supervised by the maternal grandmother or another agreed person, and occur on specific Sundays, with changeovers at the maternal grandmother's home. The court also made orders regarding the father's authority to enrol the child in school and the mother's entitlement to obtain educational and health information.
In relation to costs, the father and mother were each ordered to pay $7,733 to the Independent Children’s Lawyer. Regarding the single expert's fees, the Department was to pay one-third, and the father and mother were each to contribute one-third, with specific directions for the reimbursement of fees already paid by the father.
Orders
Orders of the court
1.
That all previous parenting orders in relation to the child L born … 2011 (“the child”) be discharged.
2.
That for a period of 3 months from the date of these orders, the Minister for Family and Community Services shall have sole parental responsibility for the child.
3.
That at the expiration of a period of 3 months from the date of these orders the father shall have sole parental responsibility for the child.
4.
That for the period during which the Minister for Family and Community Services holds parental responsibility for the child, the child shall live as directed by the Secretary for the Department of Family and Community Services or his delegate and such direction may include a direction that the child live with the father during such period.
5.
That at the expiration of a period of 3 months from the date of these orders the child shall live with the father.
6.
That for the first 9 months during which the father holds parental responsibility for the child the father shall accept the supervision of the Secretary or his delegate and shall comply with all reasonable directions given by the secretary or his delegate in relation to the safety, welfare and well-being of the child with such supervision to include inspection of the premises in which the child is living and sighting and interviewing the child.
7.
That the child shall spend time with the maternal grandmother Mrs Kader as agreed between the father and maternal grandmother and failing agreement on the first weekend of each calendar month from 10.00 am Saturday until 5.00 pm Sunday.
8.
That the child shall spend time with the mother as agreed between the father and mother with such agreement to be in writing with such writing to include SMS or email communication and in default of agreement as follows:
(a) The second Sunday of January, March, May, July, September, and November in each year for a period of not less than 2 hours on each occasion;
(b) Provided always that unless otherwise agreed between the mother and the father and until the child attains 13 years of age all time spent by the child with the mother shall be supervised by the maternal grandmother Mrs Kader or by the maternal aunt Ms N or by a person agreed between the mother and the father or a professional contact supervisor with the cost of any such supervision to be paid by the mother;
(c) Provided always that upon the child attaining 13 years of age the mother’s time with the child shall continue to be supervised unless otherwise agreed by the mother and father,
(d) Provided always that unless otherwise agreed between the mother and father all changeovers for the purposes of the child’s time with the mother shall occur at the home of the maternal grandmother.
9.
That the mother shall not contact or approach the child except in terms of these orders or with the consent of the father in writing with such writing to include SMS or email communication.
10.
That the mother shall comply with all reasonable directions given to her during periods of supervised time by the maternal grandmother Mrs Kader, the maternal aunt Ms N or any other agreed or appointed supervisor.
11.
That the father is authorised by reason of this order to do all things necessary to enrol the child in school for the commencement of the 2016 school year at a school chosen by the father.
12.
That the mother is authorised by reason of this order to obtain from the child’s school educational information including school reports and newsletters and is further authorised by reason of this order to obtain from the child’s health professionals medical, dental and other allied health information relating to the child as she may reasonably request.
13.
That the father shall do all things necessary as the parent holding sole parental responsibility to inform the mother of any significant decision taken by him as to the education, medical, dental or other allied health treatment for the child within a reasonable period of making such decision.
14.
That the father shall do all things necessary as the parent holding sole parental responsibility to facilitate the mother obtaining the information as provided for in Order 12 above.
Independent Children’s Lawyer’s Costs
15.
That the father and mother each pay to the Independent Children’s Lawyer by way of costs $7,733 within three months from this date.
Single Expert’s Fees
16.
That within one month from this date the Intervenor Department of Family and Community Services pay to the Independent Children’s Lawyer one third of the total fees paid or payable to the Single Expert Dr K and that from such payment the Independent Children’s Lawyer pay any fees outstanding to the Single Expert and pay the balance by way of reimbursement to the father any sum paid by him to date in excess of one third of the total fees paid or payable to the Single Expert Dr K.
17.
That within three months from this date the mother pay to the Independent Children’s Lawyer one third of the total fees paid or payable to the Single Expert Dr K and that payment be paid by the Independent Children’s Lawyer to the father to reimburse to the father for the balance then owing of any sum paid by him to date in excess of one third of the total fees paid or payable to the Single Expert Dr K.
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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