JENKINS & LLOYD - [2009] FamCA 832

FAMILY COURT OF AUSTRALIA

JENKINS & LLOYD

[2009] FamCA 832

FAMILY LAW – Children – With whom a child should spend time– allegations of family violence – interim orders

APPLICANT:

Mr Jenkins

RESPONDENT:

Ms Lloyd

INDEPENDENT CHILDREN’S LAWYER:

Cathleen Corridon Solicitors

FILE NUMBER:

MLC

2364

2007

DATE DELIVERED:

4 September 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

29 June and 1, 2, 3 and 15 July

REPRESENTATION

FOR THE APPLICANT:

In Person

FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms S Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Cathleen Corridon Solicitors

Orders

That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the child B born … December 2006.
That the child live with the mother.
That the child spend time with the father as follows:-
(a)On four occasions supervised at S Contact Centre (“the contact centre”) for a period of two hours or such longer period as is offered by the contact centre;
(b)That after the father has exercised time in accordance with paragraph 4(a) of this Order:-
(i)the independent children’s lawyer obtain a brief written report from the Centre and provide a copy to the parties and to the family consultant;
(ii)the child spend time with the father on 2 occasions for a period of two hours, with changeovers to be effected at the contact centre as part of the contact centre’s changeover program; on times and dates to be nominated by the contact centre in consultation with the father and the mother;
(c)provided the father has exercised his time pursuant to (4)(b)(ii) of this Order, the child spend time with the father for two periods of five hours each, with changeovers to be effected at the contact centre as part of the contact centre’s changeover program;
(d)provided that the father has exercised all the time to which he is entitled pursuant to the preceding provisions of this Order or the parties otherwise agree, the child spend time with the father once per week from 10 a.m. to 4.00 p.m. with changeovers to be effected at the contact centre, on times and dates to be nominated by the centre in consultation with the father and advised to the mother not less than 14 days prior to the day
(e)the father spend time and communicate with the child as may be otherwise agreed between the parties from time to time and confirmed in writing (via their respective solicitors) and the independent children’s lawyer.
That an updated Family Report be prepared by Mr V, to be commenced not earlier than 1 March 2010 and to be concluded by not later than 13 April 2010 to assess the progress of the time the child has spent with the father and in particular to ascertain:-
(a)Whether the child has been and is likely to be protected from parental conflict;
(b)The capacity of the parents to develop a more effective parental relationship;
(c)Whether the child should send…

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 JENKINS & LLOYD

Details

AGLC: JENKINS & LLOYD [2009] FamCA 832
Case: [2009] FamCA 832
Decision Date: 4 September 2009

CaseChat Overview and Summary

In the matter of Jenkins & Lloyd, Bennett J considered parenting orders concerning the child B. The dispute involved the mother and father's arrangements for the child, with the court ultimately making significant orders regarding parental responsibility, living arrangements, and the child's time with each parent.

The court was required to determine the appropriate parenting orders for the child B, including who should have sole parental responsibility, where the child should live, and the nature and extent of the child's time with the father. Further issues included the facilitation of contact, the need for ongoing assessment of the parents' capacities and the child's welfare, and the parents' conduct towards each other. The court also considered the involvement of professionals, including a family consultant, an independent children's lawyer, and the parents' treating practitioners.

Bennett J discharged all previous parenting orders and made new orders granting the mother sole parental responsibility and the child's primary residence. The father's time with the child was to be progressively introduced and supervised, with specific conditions and reporting requirements. The court mandated the preparation of an updated Family Report to assess the child's progress and the parents' capacity for effective co-parenting, and to advise on future arrangements, including overnight stays and the continuation of supervised changeovers. The orders also included provisions for communication between the parents, prohibitions against denigration, and requirements for both parents to attend counselling and relevant courses, with ongoing reporting to the independent children's lawyer. The matter was adjourned for mention following the release of the Family Report or on a specified date for directions for a final hearing.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the mother have sole parental responsibility for the child B born … December 2006.

That the child live with the mother.

That the child spend time with the father as follows:-

(a) On four occasions supervised at S Contact Centre (“the contact centre”) for a period of two hours or such longer period as is offered by the contact centre;

(b) That after the father has exercised time in accordance with paragraph 4(a) of this Order:-

(i) the independent children’s lawyer obtain a brief written report from the Centre and provide a copy to the parties and to the family consultant;

(ii) the child spend time with the father on 2 occasions for a period of two hours, with changeovers to be effected at the contact centre as part of the contact centre’s changeover program; on times and dates to be nominated by the contact centre in consultation with the father and the mother;

(c) provided the father has exercised his time pursuant to (4)(b)(ii) of this Order, the child spend time with the father for two periods of five hours each, with changeovers to be effected at the contact centre as part of the contact centre’s changeover program;

(d) provided that the father has exercised all the time to which he is entitled pursuant to the preceding provisions of this Order or the parties otherwise agree, the child spend time with the father once per week from 10 a.m. to 4.00 p.m. with changeovers to be effected at the contact centre, on times and dates to be nominated by the centre in consultation with the father and advised to the mother not less than 14 days prior to the day

(e) the father spend time and communicate with the child as may be otherwise agreed between the parties from time to time and confirmed in writing (via their respective solicitors) and the independent children’s lawyer.

That an updated Family Report be prepared by Mr V, to be commenced not earlier than 1 March 2010 and to be concluded by not later than 13 April 2010 to assess the progress of the time the child has spent with the father and in particular to ascertain:-

(a) Whether the child has been and is likely to be protected from parental conflict;

(b) The capacity of the parents to develop a more effective parental relationship;

(d) Whether the changeover should continue to be facilitated by the contact centre or like organisation.

That the parents maintain a communication book and the father provide to the mother, in the communication book, a copy of his monthly roster as soon as possible after the father receives such roster. That the times referred to in paragraph 4 be detailed in writing in the communication book taking into account the father’s roster and the mother’s availability and the availability of the contact centre.

That the father and the mother be and are hereby restrained from denigrating each other verbally or by written, telephonic, electronic or internet means.

That the father continue to attend upon his treating psychologist and psychiatrist, as recommended by those practitioners, and do all acts and things necessary to authorise and permit the independent children’s lawyer to receive reports from them.

That the independent children’s lawyer provide a copy of Mr V’s Family Report dated 23 June 2009 to the father’s psychologist and psychiatrist.

10.

That the mother attend domestic violence counselling, to include domestic violence counselling and within 14 days provide the independent children’s lawyer in writing with the name and address of the counsellor and details of her first appointment and the identity of the counsellor if she has attended an organisation and allow the independent children’s lawyer to receive reports from the counsellor.

11.

That the independent children’s lawyer provide a copy of the reasons for judgment in this matter and Mr V’s Family report to:-

(a) The father’s psychologist, Dr O

(b) The father’s psychiatrist, Dr N; and

12.

That the father complete a parenting after separation course or such other course as is advised to him in writing within 14 days by the independent children’s lawyer.

13.

I reserve to all parties liberty to apply on short notice in the event of alleged difficulty with implementation of this Order and/or in the event of alleged contravention of this order and that any such application be listed before me if I am reasonably available.

14.

That I adjourn this matter for mention on a date to be fixed by my Associate following the release of the family report or at 9.00 a.m. on 1 May 2010 (whichever first occurs) for directions for allocation of the final hearing.

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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