Irving and Irving and Ors - [2013] FCCA 2380

FEDERAL CIRCUIT COURT OF AUSTRALIA

IRVING & IRVING & ORS

[2013] FCCA 2380

Catchwords:
FAMILY LAW – Interim parenting orders – serious psychotic episode of Father while children in his care – issues of supervision and whether paternal Grandparents are appropriate supervisors – extensive psychiatric evidence that confirms Father was mis-diagnosed and therefore not properly medicated at time of psychotic episode – Mother has recently re-partnered with Father ’s cousin – issues of ‘blended family’ when relatives now become siblings.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(2b), 60CC(2A), 60CC(3)(c) & (i), 61DA, 65DAA

Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Mazorski v Albright (2008) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461

Applicant:

MR IRVING

First Respondent:

MS IRVING

Second Respondents:

MR J & MS C

File Number:

CAC 532 of 2013

Judgment of:

Judge Neville

Hearing date:

By written submissions

Date of Last Submission:

2 December 2013

Delivered at:

Canberra

Delivered on:

18 December 2013

REPRESENTATION

Solicitor/Advocate for the Applicant:

Ms S Milson-Mahy

Solicitors for the Applicant:

Pappas J, Attorney

Solicitor/Advocate for the First Respondent:

Ms A Osmand

Solicitors for the First Respondent:

Dobinson Davey Clifford Simpson

Solicitor/Advocate for the Paternal Grandparents:

Mr D Moore

Solicitors for the Paternal Grandparents:

KJB Lawyers

Solicitor/Advocate for the Independent Children’s Lawyer:

Mr K Hubert

Solicitors for the Independent Children’s Lawyer:

Capon & Hubert

ORDERS

The children spend time with the Father on Saturday or Sunday of each week from 9am until 5 pm supervised by the paternal Grandparents;
In addition to relevant parts of the undertakings already given and filed on 5^th July 2013, within 5 days of the date of these orders each of the Grandparents is to file with the Court a further written undertaking that conforms to the matters identified in par.5 of the submissions filed on their behalf on 8^th November 2013;
Changeover shall be effected by the paternal Grandmother at Marymead (both the paternal Grandfather and Mr B should not attend any changeover);
The Father be permitted to telephone the children every Tuesday and Thursday between 5.30pm and 6.30pm; the children be permitted to telephone their Father at any reasonable time and their Mother is requested to facilitate that this occur;
The children spend from 10am until 2pm with their Father on Christmas Day (also supervised by the paternal Grandparents);
The Father be permitted to attend the children’s school and sporting events in the company of his parents; when this occurs, the paternal Grandfather and Mr B shall not come within 100 metres of each other;
All parties shall engage with (omitted) Mental Health regarding psycho-education. The parties are permitted to provide a copy of these orders to (omitted) Mental Health with a request that all things are done to facilitate the education of all parties, including the Mother, Ms Irving, and the paternal Grandparents.
If the Father fails to comply with his treatment regime, his time with the children shall be immediately suspended.
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 Irving and Irving and Ors

Details

AGLC: Irving and Irving and Ors [2013] FCCA 2380
Case: [2013] FCCA 2380
Decision Date: 18 December 2013

CaseChat Overview and Summary

In the matter of *Irving and Irving and Ors*, Judge Neville of the Family Court of Australia made orders concerning the time spent by the Father with his three children, X, Y, and Z, and the involvement of the paternal grandparents. The dispute centred on arrangements for the children's welfare and contact with their father, particularly in light of the father's mental health treatment.

The court was required to determine appropriate parenting orders that would facilitate supervised time between the Father and the children, establish communication protocols, and ensure the children's safety and well-being. Key issues included the level of supervision required for contact, the father's compliance with his psychiatric treatment, and the appointment of an Independent Children's Lawyer to represent the children's interests. The court also considered the need for psycho-education for all parties involved.

Judge Neville's reasoning led to a detailed set of orders aimed at balancing the father's right to spend time with his children with the need for their protection. The orders mandated supervised contact, specified changeover procedures to minimise conflict, and permitted limited telephone contact. Crucially, the father was required to remain on a psychiatric treatment order and provide consent for his mental health team to communicate with other parties, with his time with the children contingent on compliance with his treatment regime. The court also appointed an Independent Children's Lawyer and requested the Legal Aid Office of the ACT to arrange representation for the children, listing the matter for a final hearing.

Orders

Orders of the court

The children spend time with the Father on Saturday or Sunday of each week from 9am until 5 pm supervised by the paternal Grandparents;

In addition to relevant parts of the undertakings already given and filed on 5th July 2013, within 5 days of the date of these orders each of the Grandparents is to file with the Court a further written undertaking that conforms to the matters identified in par.5 of the submissions filed on their behalf on 8th November 2013;

Changeover shall be effected by the paternal Grandmother at Marymead (both the paternal Grandfather and Mr B should not attend any changeover);

The Father be permitted to telephone the children every Tuesday and Thursday between 5.30pm and 6.30pm; the children be permitted to telephone their Father at any reasonable time and their Mother is requested to facilitate that this occur;

The children spend from 10am until 2pm with their Father on Christmas Day (also supervised by the paternal Grandparents);

The Father be permitted to attend the children’s school and sporting events in the company of his parents; when this occurs, the paternal Grandfather and Mr B shall not come within 100 metres of each other;

All parties shall engage with (omitted) Mental Health regarding psycho-education. The parties are permitted to provide a copy of these orders to (omitted) Mental Health with a request that all things are done to facilitate the education of all parties, including the Mother, Ms Irving, and the paternal Grandparents.

If the Father fails to comply with his treatment regime, his time with the children shall be immediately suspended.

The Father shall do all things necessary to ensure that he remains on a psychiatric treatment order.

10.

Within 5 days of the date of these orders, the Father shall provide authorities or consents to any other party to these proceedings to enable them to communicate directly and receive any information (oral or written) from his mental health team regarding his treatment.

11.

The Court requests the parties (and the ICL) to indicate to the Court within 24 hours of the date of these orders whether there is any opposition to the preparation of a report by a Regulation 7 consultant.

12.

Upon compliance with order 11 of these orders, the Court discharges the appointment of the current ICL and requests the Legal Aid Office of the ACT to appoint, as expeditiously as possible, a new ICL.

13.

Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children, X (d.o.b (omitted) 2002), Y (d.o.b (omitted) 2004) and Z (d.o.b (omitted) 2008).

14.

The Legal Aid Office, ACT, is requested to make arrangements as soon as practicable for appropriate representation for the children.

15.

Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.

16.

Each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.

17.

The matter be listed for final hearing for 4 days commencing on 3 March 2014 at 10:00am in Canberra and further trial directions shall be made in Chambers.

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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