Howell and Carter - [2015] FCCA 3464

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWELL & CARTER

[2015] FCCA 3464

Catchwords:
FAMILY LAW – Parenting – interim parenting – issues of racial vilification and impacts of this on the child – consideration of spend time with arrangements – family violence – sole parental responsibility ordered – matter adjourned on an interim basis – Mother’s travel with the child to the (country omitted) – capacity of the Father to provide for the psychological and emotional needs of the child – psychological and neuropsychological assessment – supervised time at a contact centre – meaningful relationship between the parents and the child.

Legislation:

Family Law Act 1975, ss.4AB(1), 4AB(2)(d), 60B, 60CC(2), 60CC(3), 61DA, 61DA(2)

Applicant:

MR HOWELL

Respondent:

MS CARTER

File Number:

MLC 11211 of 2013

Judgment of:

Judge Stewart

Hearing dates:

18,19 & 20 November 2015

7 & 8 December 2015

Date of Last Submission:

8 December 2015

Delivered at:

Melbourne

Delivered on:

9 December 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Lampe Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Potter

Solicitors for the Independent Children’s Lawyer:

Clark Family Lawyers

ORDERS

All previous orders with respect to the child X born (omitted) 2011 (“X”) be and are hereby discharged.
The Mother have sole parental responsibility for X.
X live with the Mother.
Until further order, the Father spend time with X at the Berry Street Contact Service in Richmond at such times as may be available and nominated by the Berry Street Contact Service.
Until further order and to facilitate the Father spending time with X at the Berry Street Contact Service, the parties do all such acts and things and sign all such documents as shall be necessary to complete the intake process at the Berry Street Contact Service.
The Father forthwith enrol in a Men’s Behaviour Change Course, complete same as soon as possible and provide proof of enrolment and completion to the Independent Children’s Lawyer.
The Father attend Drug and Alcohol Counselling with an organisation approved by the Independent Children’s Lawyer and provide proof of attendance. The Father shall seek a report from the Drug and Alcohol Counsellor and provide that report to the Independent Children’s Lawyer and the Mother when it becomes available.
That the Father shall attend for a neuropsychological assessment with Dr S or other professional approved by the Independent Children’s Lawyer at his expense and provide the assessment to the Independent Children’s Lawyer as soon as it becomes available. The Independent Children’s Lawyer be at liberty to provide documents including the previous neuropsychological report and Family Report to the person completing the assessment.
That the Father forthwith obtain, at his own expense, a psychiatric assessment and report with a psychiatrist recommended by the Independent Children’s Lawyer and upon receipt of that report the Father provide a copy to Independent Children’s Lawyer and the Mother.
The Father attend upon a counsellor nominated by the Independent Children’s Lawyer for the purposes of receiving…

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 Howell and Carter

Details

AGLC: Howell and Carter [2015] FCCA 3464
Case: [2015] FCCA 3464
Decision Date: 9 December 2015

CaseChat Overview and Summary

In *Howell and Carter*, the court considered orders concerning a child, X, born in 2011. The dispute involved the parents' responsibilities and contact arrangements for X. The court's primary focus was on ensuring X's welfare and safety, particularly in light of concerns raised about the Father's behaviour and its impact on X.

The legal issues before the court included determining the appropriate parental responsibility arrangements, establishing a safe and supervised contact regime for the Father, and addressing the Father's need for behavioural and psychological assessments. The court also had to consider the Mother's ability to travel with X and the need for ongoing reporting and assessments to inform future decisions.

The court ordered that the Mother have sole parental responsibility for X, and that X live with the Mother. The Father's time with X was to be facilitated through the Berry Street Contact Service, with specific requirements for the Father to enrol in and complete a Men's Behaviour Change Course, attend drug and alcohol counselling, and undergo neuropsychological and psychiatric assessments. Injunctions were imposed to prevent either parent from denigrating the other or discussing proceedings in X's presence. The court also requested X be removed from the Airport Watch List and permitted the Mother to travel with X under specific conditions, while also ordering an updated Family Report to be prepared for a final hearing.

Orders

Orders of the court

All previous orders with respect to the child X born (omitted) 2011 (“X”) be and are hereby discharged.

The Mother have sole parental responsibility for X.

X live with the Mother.

Until further order, the Father spend time with X at the Berry Street Contact Service in Richmond at such times as may be available and nominated by the Berry Street Contact Service.

Until further order and to facilitate the Father spending time with X at the Berry Street Contact Service, the parties do all such acts and things and sign all such documents as shall be necessary to complete the intake process at the Berry Street Contact Service.

The Father forthwith enrol in a Men’s Behaviour Change Course, complete same as soon as possible and provide proof of enrolment and completion to the Independent Children’s Lawyer.

The Father attend Drug and Alcohol Counselling with an organisation approved by the Independent Children’s Lawyer and provide proof of attendance. The Father shall seek a report from the Drug and Alcohol Counsellor and provide that report to the Independent Children’s Lawyer and the Mother when it becomes available.

That the Father shall attend for a neuropsychological assessment with Dr S or other professional approved by the Independent Children’s Lawyer at his expense and provide the assessment to the Independent Children’s Lawyer as soon as it becomes available. The Independent Children’s Lawyer be at liberty to provide documents including the previous neuropsychological report and Family Report to the person completing the assessment.

That the Father forthwith obtain, at his own expense, a psychiatric assessment and report with a psychiatrist recommended by the Independent Children’s Lawyer and upon receipt of that report the Father provide a copy to Independent Children’s Lawyer and the Mother.

10.

The Father attend upon a counsellor nominated by the Independent Children’s Lawyer for the purposes of receiving counselling with respect to multi-cultural issues and issues arising from having a child with a mixed heritage background in an effort to try to make him understand that criticism of the Mother has a serious psychological impact upon X.

11.

The Mother and the Father be restrained by injunction by themselves and their servants and agents from:

(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their immediate or extended family or their partners to or in the hearing or presence of X or from permitting any other person to do so;

(b) Discussing these proceedings or any intervention order proceedings in the hearing or presence of X or from providing X with any document prepared for these proceedings (whether filed or unfiled) or leaving any such document where X can see or read it or from permitting any other person to do so.

12.

That the Mother shall advise the Father as soon as practicable of any serious illness or serious injury suffered by X and provide details of the illness or injury and the treatment and authorise the Father to speak to the treating medical practitioners and to obtain copies of any reports at his expense if any.

13.

The Court requests that the Australian Federal Police remove the name of the child X born (omitted) 2011 from the Airport Watch List at all points of international arrivals and departures in Australia.

14.

Subject to order 16 hereof the Mother be permitted to travel with X for up to two consecutive weeks each year.

15.

The Mother’s travel to the (country omitted) with X is subject to the following conditions:

(a) the Mother has an Australian permanent residency visa;

(b) the Mother give the Father no less than 30 days written notice of her intention to travel to the (country omitted); and

(i) return air travel tickets for the Mother and X; and

(ii) a travel itinerary for X including contact telephone number.

16.

Pursuant to Section 62G(2) of the Family Law Act 1975 a court funded updated Family Report be prepared in relation to the parties and X born (omitted) 2011, to be released 35 days prior to the final hearing. The parties shall comply with all reasonable directions of the Family Consultant including making themselves, the children and any other relevant person available at times nominated by the Family Consultant.

17.

The Family Consultant may inspect all subpoenaed material which has been released to the parties.

18.

The proceedings are listed for Final Hearing for two days commencing on a date and time to be advised.

19.

The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

20.

The Applicant file and serve any Amended Application, all affidavits and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 28 days prior to the Final Hearing.

21.

The Respondent file and serve any Amended Response, all affidavits and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 14 days prior to the Final Hearing.

22.

The Applicant file and serve any material in reply no later than 7 days prior to the Final Hearing.

23.

The Independent Children’s Lawyer file and serve any material on which they seek to rely by no later than 7 days prior to the Final Hearing.

24.

Each party file and serve a case outline by no later than 2 days prior to trial and provide a copy in Word format to (omitted).

25.

Liberty to apply is granted to each of the parties if the Berry Street Contact Service becomes unavailable to facilitate time between the Father and X.

26.

Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.

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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