Grollo & Bilson (No 2) - [2017] FamCA 440

FAMILY COURT OF AUSTRALIA

GROLLO & BILSON (NO 2)

[2017] FamCA 440

FAMILY LAW – CHILDREN – where some issues were matters of consent relating to teenagers but the court was required to determine appropriateness of other orders.

Family Law Act 1975 (Cth)
AMS v AIF (1999) 199 CLR 160 Doherty & Doherty [2016] FamCAFC 182 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Rice v Asplund (1979) FLC 90-725 Secretary, Department of Health and Community Services v JWB and SMV (1992) 175 CLR 218 U v U [2002] HCA 36; (2002) 211 CLR 238 VR & RR [2002] FamCA 320; (2002) FLC 93-099

APPLICANT:

Ms Grollo

RESPONDENT:

Mr Bilson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

6848

2014

DATE DELIVERED:

26 June 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

1, 2 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tulloch

SOLICITOR FOR THE APPLICANT:

Eales & Mackenzie

COUNSEL FOR THE RESPONDENT:

Mr Puckey

SOLICITOR FOR THE RESPONDENT:

KENNEDY PARTNERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS BOYMAL

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

All existing parenting orders are forthwith discharged.
The father of B born … 2001 and C born … 2003 have sole parental responsibility for all major long-term decisions relating to their education and health and he inform the mother of any such decision.
The mother and the father of B and C have equal shared parental responsibility for all other major long-term decisions relating to those children other than the matters in paragraph 1.
The children forthwith live with the father.
The mother and the father are each restrained by injunction from denigrating the other to, or in the presence of, their children.
At his expense, the father is to continue to ensure the attendance of the two children upon psychologist Mr D for such period as the psychologist considers it necessary.
Pursuant to s 65Y(2) of the Family Law Act 1975, the father has permission to take both children from the Commonwealth of Australia to travel with them internationally.
To the extent that future leave may be necessary, the mother has leave to apply for further parenting orders relating to her time and communication with the two children in the event that any agreement with the father about those two issues breaks down.
Pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.
For the avoidance of doubt, each parent may show these orders to any school or health professional involved with the two children.
A copy of these orders and the reasons for judgment this day be provided by 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 Grollo & Bilson (No 2)

Details

AGLC: Grollo & Bilson (No 2) [2017] FamCA 440
Case: [2017] FamCA 440
Decision Date: 26 June 2017

CaseChat Overview and Summary

In Grollo & Bilson (No 2), Cronin J considered parenting orders concerning two children, B and C. While some issues were resolved by consent, particularly those relating to the teenagers' preferences, the court was required to determine the appropriateness of other proposed orders.

The central legal issues before the court were how to allocate parental responsibility for major long-term decisions concerning the children's education and health, where the children should live, and whether to grant the father permission to travel internationally with the children. The court also had to consider injunctions to prevent parental denigration and the continuation of psychological support for the children.

Cronin J discharged all existing parenting orders. The court made orders for the father to have sole parental responsibility for major long-term decisions regarding the children's education and health, with an obligation to inform the mother of any such decisions. For all other major long-term decisions, the parents were to have equal shared parental responsibility. The children were ordered to live with the father forthwith. Injunctions were imposed restraining both parents from denigrating the other to or in the presence of the children. The father was ordered to continue to fund the children's attendance with a psychologist, and he was granted permission to take the children internationally. The mother was granted leave to apply for further parenting orders concerning her time and communication with the children if any agreement on these issues broke down. The court also made detailed provisions regarding the particulars of the obligations and consequences of contravening the orders, as set out in an attached Fact Sheet, and discharged the Independent Children's Lawyer.

Orders

Orders of the court

All existing parenting orders are forthwith discharged.

The father of B born … 2001 and C born … 2003 have sole parental responsibility for all major long-term decisions relating to their education and health and he inform the mother of any such decision.

The mother and the father of B and C have equal shared parental responsibility for all other major long-term decisions relating to those children other than the matters in paragraph 1.

The children forthwith live with the father.

The mother and the father are each restrained by injunction from denigrating the other to, or in the presence of, their children.

At his expense, the father is to continue to ensure the attendance of the two children upon psychologist Mr D for such period as the psychologist considers it necessary.

Pursuant to s 65Y(2) of the Family Law Act 1975, the father has permission to take both children from the Commonwealth of Australia to travel with them internationally.

To the extent that future leave may be necessary, the mother has leave to apply for further parenting orders relating to her time and communication with the two children in the event that any agreement with the father about those two issues breaks down.

Pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

10.

For the avoidance of doubt, each parent may show these orders to any school or health professional involved with the two children.

11.

A copy of these orders and the reasons for judgment this day be provided by the Court to Family Consultant Ms E.

12.

A copy of these orders, the reasons for judgment this day and the family report of Ms E may be provided by the solicitor for the father to psychologist Mr D.

13.

The order for the appointment of an Independent Children’s Lawyer is discharged and she is further discharged from the proceedings save for the purposes of explaining these orders to the children if considered appropriate.

14.

It is certified that it was reasonable in the circumstances for the parties to engage counsel to appear for them.

15.

That all other applications for parenting orders are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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