HENDERSON & CHOPKE - [2011] FamCA 631

FAMILY COURT OF AUSTRALIA

HENDERSON & CHOPKE

[2011] FamCA 631

FAMILY LAW – CHILDREN – Parenting orders – Application of Part VII where competing proposals of a parent and non-parent – Best interests of the child – Where the child’s mother has died and the child has been cared for by both his father and his maternal grandmother.

FAMILY LAW – CHILDREN – allegations of family violence – notifications to the Department of Communities (Child Safety) – section 60CC(2)(b) – no sufficient evidence to suggest a need to protect child from physical harm in the care of his father – potential psychological harm caused to child by both parties – where both parties found to denigrate the other in front of the child.

FAMILY LAW – CHILDREN – With whom a child lives – Where the child has been diagnosed with a range of medical difficulties – capacity of each party to provide for the child’s needs.

Family Law Act 1975 (Cth)

Aldridge v Keaton [2009] FamCAFC 229
Chantness v Hanson (2009) FLC 93-407
Donnell v Dovey (2010) FLC 93-428
Hort v Verran [2009] FamCAFC 214
Marsden v Winch(No 3) [2007] FamCA 1364
Mulvany v Lane (2009) FLC 93-404
Potts v Bims [2007] FamCA 394

APPLICANT:

Mr Henderson

RESPONDENT:

Ms Chopke

FILE NUMBER:

BRC

4639

2007

DATE DELIVERED:

8 August 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

27, 28 and 29 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Pieterse

SOLICITOR FOR THE APPLICANT:

Hooper Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mrs J Farr

SOLICITOR FOR THE RESPONDENT:

Cogill Woods Legal Services Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr G Pohlmann

Orders

That all prior parenting orders in relation to the child, D Henderson-Chopke (“D”), born 7 February 2002, be discharged.
That D live with the Father and that the Father have sole parental responsibility for D’s long-term care, welfare and development.
That the Father and Maternal Grandmother have sole responsibility for making decisions about the day to day care, welfare and development of D during periods when D is living with them.

Time

That the Maternal Grandmother spend time with and communicate with D at all times as agreed but failing agreement as follows:
(a)From 10.00 am until 3.00 pm on each of Saturday 13 August 2011; Saturday 27 August 2011; and Saturday 10 September 2011 at S Park, Brisbane Suburb 1, with changeovers to occur at Location 1 within the park;
(b)From 10.00 am Saturday, 24 September 2011 to 3.00 pm Sunday, 25 September 2011 and fortnightly thereafter until the provision in (c) below takes effect, with changeovers to occur at the mainland ferry terminal for ferries to and from Island 1 provided that with respect to the first such overnight period it will be spent at a motel within ten (10) kilometres of the said terminal and the Maternal Grandmother shall notify the Father by e-mail or text message by 5.00 pm Wednesday 21 September of…

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 HENDERSON & CHOPKE

Details

AGLC: HENDERSON & CHOPKE [2011] FamCA 631
Case: [2011] FamCA 631
Decision Date: 8 August 2011

CaseChat Overview and Summary

This matter concerned an application by the father and maternal grandmother of D Henderson-Chopke, a child born in February 2002, for parenting orders. The child's mother had died, and D had been cared for by both his father and his maternal grandmother. The court was required to determine competing proposals for D's living arrangements and parental responsibility, considering the best interests of the child.

The legal issues before the court included determining with whom D should live, who should have sole parental responsibility for his long-term care, welfare, and development, and the extent of time the maternal grandmother should spend with D. The court also had to consider allegations of family violence and notifications made to the Department of Communities (Child Safety), assessing whether there was a need to protect D from physical harm in the care of his father. Furthermore, the court was required to evaluate the capacity of each party to provide for D's needs, particularly given his diagnosis with a range of medical difficulties, and to address potential psychological harm caused by the parties denigrating each other in front of the child.

Kent J reasoned that while both parties had denigrated each other in front of D, causing potential psychological harm, there was insufficient evidence to suggest a need to protect D from physical harm in the father's care. The court ultimately ordered that all prior parenting orders be discharged. D was to live with the father, who was granted sole parental responsibility for D’s long-term care, welfare, and development. The father and maternal grandmother were to share responsibility for day-to-day decisions concerning D when he was with them. Detailed orders were made regarding the maternal grandmother's time with D, including specific dates, durations, and changeover arrangements, as well as provisions for communication, information sharing, and mutual encouragement of the child's relationship with each party. The court also imposed restraints on both parties regarding denigration, discussion of proceedings, and adult issues with D, and placed specific restrictions on the maternal grandmother's involvement in D's medical care. An injunction was issued restraining the father from relocating D's residence further away from the maternal grandmother's address.

Orders

Orders of the court

That all prior parenting orders in relation to the child, D Henderson-Chopke (“D”), born 7 February 2002, be discharged.

That D live with the Father and that the Father have sole parental responsibility for D’s long-term care, welfare and development.

That the Father and Maternal Grandmother have sole responsibility for making decisions about the day to day care, welfare and development of D during periods when D is living with them.

Time

That the Maternal Grandmother spend time with and communicate with D at all times as agreed but failing agreement as follows:

(a) From 10.00 am until 3.00 pm on each of Saturday 13 August 2011; Saturday 27 August 2011; and Saturday 10 September 2011 at S Park, Brisbane Suburb 1, with changeovers to occur at Location 1 within the park;

(b) From 10.00 am Saturday, 24 September 2011 to 3.00 pm Sunday, 25 September 2011 and fortnightly thereafter until the provision in (c) below takes effect, with changeovers to occur at the mainland ferry terminal for ferries to and from Island 1 provided that with respect to the first such overnight period it will be spent at a motel within ten (10) kilometres of the said terminal and the Maternal Grandmother shall notify the Father by e-mail or text message by 5.00 pm Wednesday 21 September of the name and address of such motel;

(c) Commencing on and from the beginning of the school term gazetted for Queensland for 2012 during school terms, from after school on Friday until 4.00 pm Sunday commencing on the third weekend of the school term and each third weekend thereafter on the basis that if D is attending or is due to attend school on Island 1 on Friday of the commencement of such weekend, changeover at commencement is to occur as soon as practicable after school and no later than 4.30 pm at the mainland ferry terminal for ferries to and from Island 1 but if D is attending school at the Autism Centre at Brisbane Suburb 2 on such a Friday, the Maternal Grandmother shall collect D from that Centre after school and in all cases the Maternal Grandmother shall return D at the conclusion of such periods at the mainland ferry terminal for ferries travelling to and from Island 1 by 4.00 pm on the Sunday;

(d) For the first week of the June/July school vacation period in even- numbered years and the second week of such vacation period in odd- numbered years with such periods to commence at 10.00 am on the Saturday and conclude at 5.00 pm on the Sunday with changeovers to occur at Location 1 within S Park, Brisbane Suburb 1;

(e) Commencing with the 2012 Christmas school vacation period, for one week commencing 12 noon, 17 December and concluding 12 noon 24 December in even-numbered years, and for one week from 12 noon, 26 December, until 12 noon, 2 January in odd-numbered years, with all changeovers occurring at Location 1 within S Parklands, Brisbane Suburb 1;

(f) That D shall always spend Father’s Day weekend with the Father and in the event that this weekend falls on a weekend that D is otherwise due to spend time with the Maternal Grandmother, then his weekend with his Maternal Grandmother shall occur on the following weekend; and

(g) If for any reason any scheduled period of time for D to spend time with the Maternal Grandmother pursuant to these Orders does not occur as scheduled, then the Maternal Grandmother shall nominate in writing an alternative and equivalent period of make-up time with changeover times and places to be in conformity with the times and places scheduled and the Father shall ensure that such substituted time occurs. Such substituted times as nominated shall, for the purpose of interpretation of this Order, be a “scheduled period” within the meaning of this Order.

Communication

That the Maternal Grandmother be at liberty to communicate with D by telephone as follows:

(a) Commencing 17 August 2011 each alternate Wednesday between 6.00 pm and 6.30 pm;

(b) On D’s birthday between 6.00 pm and 6.30 pm;

That the Maternal Grandmother shall initiate all such telephone calls to D, with such calls to be made to the Father’s landline number.

That the Father shall ensure that D is available to speak with the Maternal Grandmother at such times. The Father shall ensure that D has privacy to speak with his Maternal Grandmother during such telephone communication in a quiet and private location.

That the Father authorise any school attended by D to give to the Maternal Grandmother information about D’s educational progress and other school related activities and supply her, at her expense, with copies of school reports, photographs, certificates and awards relative to or obtained by D.

That the Father and the Maternal Grandmother shall each encourage and foster D’s relationship with the other.

10.

That the Father refrain from:

(a) Denigrating or criticising the Maternal Grandmother to D or allowing any third party to denigrate or criticise the Maternal Grandmother within the presence or hearing of D;

(b) Discussing with D any proceedings (save and except for the effect of the terms of these Orders insofar as the Orders affect D) that relate to D; and

11.

That the Maternal Grandmother refrain from:

(a) Denigrating or criticising the Father or Ms C to D or allowing any third party to denigrate or criticise the Father or Ms C within the presence or hearing of D;

(b) Discussing with D any proceedings (save and except for the effect of the terms of these Orders insofar as the Orders affect D) that relate to D; and

Other

12.

That the Maternal Grandmother be restrained from attending upon any medical practitioner with D unless D suffers serious illness or injury whilst in her care requiring urgent medical attention, and further, that the Maternal Grandmother shall notify the Father forthwith of any such medical emergency.

13.

That the Maternal Grandmother be restrained from contacting any medical practitioner upon whom D has attended for treatment.

14.

That the Father and the Maternal Grandmother shall advise the other in writing of any change of address and/or telephone number within five (5) days of such change.

15.

That the Father is restrained and an injunction issue restraining the Father from relocating D’s residence further away from the Maternal Grandmother’s current address than his current residence on Island 1.

16.

That neither the Father nor the Maternal Grandmother use physical discipline on D and/or permit any other person to do so.

17.

That the Father and the Maternal Grandmother keep each other informed of their landline telephone number from time to time and each shall provide the other with a mobile telephone number to enable text messages to be received and the parties shall communicate as necessary via text messages and not by causing D to relay any messages.

18.

That the Father cause any psychologist or paediatrician or other medical professional engaged in providing therapy or any cause of treatment for D to provide a short form summary report of that therapy or treatment at intervals sufficient to keep the Maternal Grandmother fully and adequately informed as to any medication or other assistance D requires from any carer when D is in their care and the Father shall cause copies of such reports to be provided to the Maternal Grandmother as soon as practicable after each is received. .

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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