Harding and Watson - [2016] FCCA 1999

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARDING & WATSON

[2016] FCCA 1999

Catchwords:
FAMILY LAW – Contravention alleged of parenting orders – contravention Applications dismissed – mother suffers from Bipolar and Delusional Disorder – consent to S.102QB Order – contested parenting issues – mother to have treatment and supervised time with child if treatment successful.

Legislation:

Family Law Act 1975, s.102Qb, Part VII

Cases cited:

Re: (F Litigants in Person Guidelines) (2001) FLC 93-072
Rice v Asplund (1978) FLR 570

Collu v Rinaldo [2010] FamCAFC53

Applicant:

MS HARDING

Respondent:

MR WATSON

File Number:

MLC 12820 of 2007

Judgment of:

Judge Curtain

Hearing dates:

18, 19, 20 and 21 April 2016

Date of Last Written Submission:

9 June 2016

Delivered at:	Melbourne
Delivered on:	15 August 2016

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Ms Smallwood

Solicitors for the Respondent:

Robinson Gill

Counsel for the Independent Children's Lawyer:

Ms Dowler

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

That the Contravention Applications of the mother filed 27 March 2015 and 26 October 2015 be dismissed.
That all prior parenting orders be discharged.
That the father have sole parental responsibility for the child X born (omitted) 2007 (“X”).
X shall live with the father.
That the mother, preferably with the assistance of any treating professional, shall forthwith appoint an independent psychiatrist and undertake such therapy and treatment as may be necessary and advised by that psychiatrist at the mother’s expense.
That a copy of the two reports of Dr T dated 20 July 2008 and 7 April 2016 and a copy of this judgment shall be provided by the father to the expert appointed pursuant to order 5 above to read prior to any treatment undertaken by the mother.
The independent psychiatrist appointed pursuant to order 5 shall advise the father in writing when, in his or her professional opinion, the time with X and his mother in order 8 herein should commence after the expert has:
(a)Fully complied with order 6 herein;
(b)Had a meeting the father and the father has discussed his concerns about X and time with the mother;
(c)The mother has undertaken all necessary therapy and treatment; and
(d)After complying with (a) to (c) above, the expert is satisfied that the treatment has been effective enough to ensure the mother is not a real or potential risk to the emotional and psychological well-being of X.
That subject to orders 5, 6 and 7 herein, X shall spend supervised time with and communicate with the mother:
(a)At the Berry Street Family Services Centre, (omitted) or under such other supervisor or location as agreed to by the father and mother in writing, first obtained;
(b)For two hours four times a calendar year, approximately every three months (save for January in each year) as proposed by the officer in charge of the supervision centre or other jointly appointed supervisor in consultation with the parents; and
(c)Communication shall be undertaken…

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 Harding and Watson

Details

AGLC: Harding and Watson [2016] FCCA 1999
Case: [2016] FCCA 1999
Decision Date: 15 August 2016

CaseChat Overview and Summary

In the matter of *Harding and Watson*, heard by Judge Curtain, the court considered applications concerning the parenting of a child, X. The mother had filed contravention applications on 27 March 2015 and 26 October 2015. The proceedings involved significant disputes regarding the child's welfare and the mother's capacity to care for X.

The central legal issues before the court were whether the mother had contravened previous parenting orders, the appropriate orders to be made regarding parental responsibility, the child's living arrangements, and the nature and extent of contact between the mother and X. The court was also required to determine the future role of any independent experts and supervisors in managing the mother's contact with the child.

Judge Curtain's reasoning led to the dismissal of the mother's contravention applications and the discharge of all prior parenting orders. The court found it necessary to make new orders to safeguard X's well-being. Consequently, the father was granted sole parental responsibility for X, and X was ordered to live with the father. The mother was directed to engage an independent psychiatrist at her own expense for therapy and treatment, with the psychiatrist to assess her suitability for contact with X. Contact between the mother and X was to be supervised and limited in frequency and duration, commencing only after the psychiatrist confirmed the mother's treatment had been effective and she posed no risk to X's emotional and psychological well-being. The court also maintained a previous consent order that required the mother to seek leave of the court before instituting any further proceedings under the *Family Law Act 1975* (Cth) against the father.

Orders

Orders of the court

That the Contravention Applications of the mother filed 27 March 2015 and 26 October 2015 be dismissed.

That all prior parenting orders be discharged.

That the father have sole parental responsibility for the child X born (omitted) 2007 (“X”).

X shall live with the father.

That the mother, preferably with the assistance of any treating professional, shall forthwith appoint an independent psychiatrist and undertake such therapy and treatment as may be necessary and advised by that psychiatrist at the mother’s expense.

That a copy of the two reports of Dr T dated 20 July 2008 and 7 April 2016 and a copy of this judgment shall be provided by the father to the expert appointed pursuant to order 5 above to read prior to any treatment undertaken by the mother.

The independent psychiatrist appointed pursuant to order 5 shall advise the father in writing when, in his or her professional opinion, the time with X and his mother in order 8 herein should commence after the expert has:

(a)Fully complied with order 6 herein;

(b) Had a meeting the father and the father has discussed his concerns about X and time with the mother;

(d) After complying with (a) to (c) above, the expert is satisfied that the treatment has been effective enough to ensure the mother is not a real or potential risk to the emotional and psychological well-being of X.

That subject to orders 5, 6 and 7 herein, X shall spend supervised time with and communicate with the mother:

(a) At the Berry Street Family Services Centre, (omitted) or under such other supervisor or location as agreed to by the father and mother in writing, first obtained;

(b) For two hours four times a calendar year, approximately every three months (save for January in each year) as proposed by the officer in charge of the supervision centre or other jointly appointed supervisor in consultation with the parents; and

(c) Communication shall be undertaken by the mother sending cards and gifts each Christmas and on his birthday to X, with the father to encourage X to send a reply to the mother.

That a copy of this judgment shall be provided by the father to the relevant supervisor in order 8 above and shall be read by them before any supervision is undertaken.

10.

That the consent order 2 made 21 April 2016 shall remain in full force and effect which order states:

Pursuant to sections 102QB and 118 of the Family Law Act 1975 (Cth) (“the Act”) and rule 13.11 of the Federal Circuit Court Rules 2001 (Cth), the Applicant mother MS HARDING born (omitted) 1971 may not, without leave of a Court having jurisdiction under this Act, institute any proceeding under the Act against the Respondent father MR WATSON born (omitted) 1966.

11.

The order appointing the Independent Children’s Lawyer be discharged.

12.

That all extant applications be dismissed.

13.

Certify for Counsel.

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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