Harvey and Harvey (No 2) - [2018] FamCA 1178

FAMILY COURT OF AUSTRALIA

HARVEY & HARVEY (NO. 2)

[2018] FamCA 1178

FAMILY LAW – CONTRAVENTION – Variation of parenting order consequent on contravention of a parenting order having been proved (four counts) – best interests of children – parents to attend upon experienced and privately funded psychologist for behaviour change therapy – children to be required to attend a psychologist if (and only if) father makes a fundamental change to his attitude to the mother and children

APPLICANT:

Mr Harvey

RESPONDENT:

Ms Harvey

INDEPENDENT CHILDREN’S LAWYER:

Mr Marchetti

FILE NUMBER:

MLC

2362

2014

DATE DELIVERED:

1 August 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

1 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cash

SOLICITOR FOR THE APPLICANT:

F D Mapleston

COUNSEL FOR THE RESPONDENT:

Mr Moisidis

SOLICITOR FOR THE RESPONDENT:

Berger Kordos

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Altavilla Family Law

Orders

IT IS ORDERED THAT:

1.All previous parenting Orders with respect to the children D HARVEY, born … 2003 (“D”), E HARVEY, born … 2005 (“E”), and F HARVEY, born … 2008 (“F”) (together “the children”) be discharged.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

2.The mother have sole parental responsibility for the children.
3.For the purposes of order 2 herein before any long term decision is made in respect of the children (or any of them):
a.     the mother shall advise the father by email of her proposal relating to the children (or any of them); and
b.     if the father wishes to comment on the mother’s proposal (or if the father has any alternative proposal he wishes to make relating to the children (or any of them) on this issue) he shall, within seven (7) days after the date of the mother’s email, advise the mother by email (to the email address from which the mother sent her communication) of his views;
c.     if the father does not respond by email as provided by order 3(b) herein, the mother shall be entitled to presume that the father does not wish to be further involved and she may decide the issue;
d.     upon receipt of any comment or proposal by the father, the mother shall give consideration to the father’s views; and
e.     after the mother has considered the father’s comments, she shall make a decision and advise the father by email or SMS of the outcome immediately after making that decision.
4.The children live with the mother.

IT IS FURTHER ORDERED BY THE COURT:

5.a. The father be at liberty to send letters, cards, and gifts to the children on the occasion of each of their birthdays, at Christmas, on other special days, and otherwise not more than once per month, AND for such purpose the mother shall facilitate delivery of such items to the addressee;
b. The children D and E spend time and communicate with the father at such times and on such…

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.

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Details

Case: [2018] FamCA 1178
Decision Date

CaseChat Overview and Summary

This case involved Mr Harvey (applicant father) and Ms Harvey (respondent mother) concerning parenting orders for their three children. The dispute centred on allegations of contravention of existing parenting orders by the mother, and the subsequent determination of appropriate parenting arrangements and therapeutic interventions for the family. The matter was heard in the Family Court of Australia by Bennett J.

The court was required to determine whether the mother had contravened the parenting orders on four specific counts, and if so, what orders should be made in light of these contraventions. The overarching consideration for the court was the best interests of the children. This included assessing the need for behaviour change therapy for the parents and determining the conditions under which the children might attend psychological counselling.

The court found that the mother had contravened the parenting orders on four counts. In response, the court discharged all previous parenting orders by consent. New orders were made granting the mother sole parental responsibility, with specific provisions for the father's involvement in long-term decision-making. The children were ordered to live with the mother, and detailed arrangements were set out for the children to spend time and communicate with the father, with specific provisions for each child. The father was also restrained from attending the children's school or extra-curricular activities, with limited exceptions. Crucially, the court ordered both parents to attend a Post Separation Program and to seek therapeutic counselling with a psychologist to address their behaviours and their impact. Furthermore, the children were to attend family therapy sessions, contingent on the father making a fundamental change to his attitude towards the mother and children, with the independent children's lawyer to direct this process. The matter was adjourned for mediation and further mention.

Orders