JOLLIE & DYSART - [2013] FamCA 762

FAMILY COURT OF AUSTRALIA

JOLLIE & DYSART

[2013] FamCA 762

FAMILY LAW – CHILDREN – Parental responsibility – with whom the child shall live and spend time – child to live with the father – father to have sole parental responsibility for the child – mother’s time with the child to progress to whole alternate weekends – orders to remain in place until the child reaches 16 years of age – where incentives for compliance are required to obviate the need for enforcement applications – where the mother’s mental health and personality is a major issue – where the child’s fulltime residence will change.

FAMILY LAW – INJUNCTIONS – Mother restrained from making contact or communicating with the child unless in accordance with orders – mother restrained from providing the child with a mobile telephone.

Family Law Act 1975 (Cth) ss 60CC, 62B 64B, 65DA, 67Q, 68B

APPLICANT:

Ms Jollie

RESPONDENT:

Mr Dysart

FILE NUMBER:

(P)NCC

421

2007

DATE DELIVERED:

9 October 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

9, 10, 11, 12, 13, 16 & 17 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tregilgas

SOLICITOR FOR THE APPLICANT:

Burke Elphick & Mead

COUNSEL FOR THE RESPONDENT:

Mr Rugendyke

SOLICITOR FOR THE RESPONDENT:

Powe White Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That all prior parenting orders in relation to H Dysart born … 2001 (“the child”) are discharged.
That until the child is 16 years of age (… 2017) parenting orders are as follows:
That the Father is to have sole parental responsibility for the child.
That the Father is to collect the child from school on 11 October 2013 and thereafter the child shall live with the Father.
After the expiry of four weeks from the date of these Orders the child shall communicate with the Mother as follows:
5.1each week on Wednesday between 6.30 pm and 7.00 pm by telephone or Skype, with the Father to arrange for the child to contact the Mother at the number/Skype address supplied by her pursuant to Order 14 herein PROVIDED THAT an adult supportive to the Mother is present with her and an adult supportive of the child is present with him on the first four occasions of communication.
In the event that the child communicates with the Mother at his instigation or hers in the four week period immediately following the date of these Orders then the commencement of Order 5.1 shall be delayed for a period of four weeks.
In the event that the child communicates other than in accordance with Order 5.1 with the Mother at his instigation or hers, after the commencement of that Order, then its operation shall be suspended for four weeks on each and every such occasion.
After the expiry of eight weeks from the date of these Orders:
8.1The child shall spend face to face time with the Mother as follows:

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 JOLLIE & DYSART

Details

AGLC: JOLLIE & DYSART [2013] FamCA 762
Case: [2013] FamCA 762
Decision Date

CaseChat Overview and Summary

This case concerned competing parenting applications brought by the mother, Ms Jollie, and the father, Mr Dysart, regarding their 12-year-old child, H. Both parents sought orders for sole parental responsibility and residence, with an alternative claim for equal shared parental responsibility. The Family Court of Australia, presided over by Cleary J, was tasked with determining the parenting arrangements for H.

The central legal issues before the court were: with whom H should live and spend time, and who should have parental responsibility for him. The court was required to consider the impact of the mother's mental health and personality on H, and to make orders that would facilitate H's transition to living full-time with his father. The court also had to address the need for incentives for compliance with orders to avoid future enforcement applications.

Cleary J applied the principles of the *Family Law Act 1975* (Cth), particularly ss 60CC, 62B, 64B, 65DA, 67Q, and 68B, in determining the best interests of the child. The court found that the mother's mental health and personality presented significant issues, leading to the decision that H should live with his father and that the father should have sole parental responsibility. The court made detailed orders regarding H's time with his mother, commencing with limited telephone contact and progressing to supervised face-to-face time, with provisions for increasing the duration and frequency of contact over time, provided certain conditions were met. The mother was also restrained from making contact with H other than in accordance with the orders and from providing him with a mobile telephone.

The court ordered that all prior parenting orders be discharged. H was to live with his father, who was to have sole parental responsibility until H reached 16 years of age. The mother's time with H was to progress from supervised telephone contact to alternating weekends, with specific conditions and safeguards in place, including the presence of supportive adults. The court also issued injunctions restraining the mother from unauthorised contact with H and from providing him with a mobile telephone. The Independent Children's Lawyer was directed to explain the orders to H, particularly regarding the implications of reaching 16 years of age. Provisions were also made for psychological support for H and the family, and for the exchange of information regarding H's health and education. A recovery order was issued but stayed, to be executed only if H was absent from the father's care in contravention of the orders.

Orders