King and King - [2016] FCCA 827

FEDERAL CIRCUIT COURT OF AUSTRALIA

KING & KING

[2016] FCCA 827

Catchwords:
FAMILY LAW – Parenting – living arrangements for the parties’ three children – two youngest children live with the Mother and spend alternate weekends with the Father – oldest child lives with the Father – allegations the Father is alienating children from the Mother – the oldest child refuses to spend time with the Mother – evidence that absent immediate intervention the oldest child will not have a relationship with the Mother – where the Father demonstrates no insight into how his behaviours are impacting the children.
Held – matter adjourned for six months – interim orders made for all three children to live with the Mother and spend no time with the Father for six months – the Father ordered to attend behavioural change and like courses and provide proof of their completion on the adjourned date on which date the resumption of time with the Father is to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60C(2), 60C(3), 60DA, 65DAA

AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) Fam LR 483

Applicant:

MS KING

Respondent:

MR KING

File Number:

MLC 3047 of 2015

Judgment of:

Judge Bender

Hearing date:

2 March 2016

Date of Last Submission:

3 March 2016

Delivered at:

Bendigo

Delivered on:

19 April 2016

REPRESENTATION

Counsel for the Applicant:

Ms Mansfield

Solicitors for the Applicant:

Stuthridge Legal

Counsel for the Respondent:

Mr Strong

Solicitors for the Respondent:

Loddon Campaspe Community Legal Centre

Counsel for the Independent Children's Lawyer:

Mr McLeod

Solicitors for the Independent Children's Lawyer:

Joliman Lawyers

ORDERS

The matter be adjourned to the sittings of the Federal Circuit Court of Australia at Bendigo on 28 November 2016 at 10:00am in the duty list.
On or before 7 November 2016 the Father file and serve any affidavits he seeks to rely upon in relation to the living arrangements for X born (omitted) 2003 (“X”), Y born (omitted) 2007 (“Y”) and Z born (omitted) 2008 (“Z”), such affidavits to confirm his compliance with Orders 16, 17 and 18 herein together with proof of same.
On or before 21 November 2016 the Mother file and serve any affidavits she seeks to rely upon in relation to the living arrangements for X, Y and Z.
All previous parenting orders be discharged.

AND THE COURT ORDERS UNTIL FURTHER ORDER:

The Mother have sole parental responsibility for X, Y and Z.
X, Y and Z live with the Mother.
The Father shall spend no face to face time with X, Y and Z but shall communicate with them via telephone each alternate week between 4.30pm and 5.00pm on Thursday with the telephone to be placed on loud speaker.
When speaking to X, Y and Z pursuant to Order 7 herein, the Father is restrained from:

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 King and King

Details

AGLC: King and King [2016] FCCA 827
Case: [2016] FCCA 827
Decision Date: 19 April 2016

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Bender in the Federal Circuit Court of Australia. The dispute involved the living arrangements and parental responsibility for three children, X, Y, and Z.

The court was required to determine the appropriate parenting orders for the children, considering the circumstances presented. This included deciding on sole or shared parental responsibility, where the children would live, the nature and extent of the father's contact with the children, and various conditions and injunctions to be imposed on both parents. The court also had to consider the children's ongoing therapeutic needs and the father's compliance with programs aimed at addressing behavioural issues.

Judge Bender's reasoning led to the discharge of all previous parenting orders. The court ordered that the Mother have sole parental responsibility for X, Y, and Z, and that the children live with her. The Father was significantly restricted in his contact, with no face-to-face time permitted, but with supervised telephone contact alternating weekly. The Father was also ordered to complete a Men's Behavioural Change Program and a parenting program, and to engage with the Department of Health and Human Services. Injunctions were placed on both parents, restraining them from denigrating each other to the children, discussing proceedings with them, and exposing them to conflict. The court also made detailed orders regarding the children's counselling and therapeutic interventions.

Orders

Orders of the court

The matter be adjourned to the sittings of the Federal Circuit Court of Australia at Bendigo on 28 November 2016 at 10:00am in the duty list.

On or before 7 November 2016 the Father file and serve any affidavits he seeks to rely upon in relation to the living arrangements for X born (omitted) 2003 (“X”), Y born (omitted) 2007 (“Y”) and Z born (omitted) 2008 (“Z”), such affidavits to confirm his compliance with Orders 16, 17 and 18 herein together with proof of same.

On or before 21 November 2016 the Mother file and serve any affidavits she seeks to rely upon in relation to the living arrangements for X, Y and Z.

All previous parenting orders be discharged.

AND THE COURT ORDERS UNTIL FURTHER ORDER:

The Mother have sole parental responsibility for X, Y and Z.

X, Y and Z live with the Mother.

The Father shall spend no face to face time with X, Y and Z but shall communicate with them via telephone each alternate week between 4.30pm and 5.00pm on Thursday with the telephone to be placed on loud speaker.

When speaking to X, Y and Z pursuant to Order 7 herein, the Father is restrained from:

(a) denigrating or belittling the Mother to X, Y or Z or encouraging them to misbehave or disobey the Mother;

(b) discussing with X, Y or Z these proceedings, the orders made and parenting issues; and/or

In the event the Father fails to comply with Order 8 herein, the Mother is at liberty to immediately terminate the telephone call.

10.

Should X run away from the Mother’s residence or abscond from school and attend at the Father’s home or the Paternal Grandmother’s home, the Father shall forthwith notify the Mother by text message and immediately return X to the Mother’s home.

11.

The Mother shall ensure that X continues to attend counselling with Mr D at Headspace (omitted) and family therapy with Ms D or such other recommended service or therapist until such time as it is recommended by that service or therapist that counselling is no longer required.

12.

The Mother forthwith enrol X into the Child and Adolescent Mental Health Service for assessment and treatment and follow all recommendations made by that service with the appropriate timing of that enrolment to be discussed with Ms D and the Mental Health Service.

13.

The Mother shall continue to engage with her personal counsellor Ms M and attend upon Ms D as directed by such counsellors.

14.

The Mother shall ensure Y and Z attend upon Ms D as directed by Ms D.

15.

The Mother be at liberty to take X, Y and Z to (country omitted) each alternate year for a maximum period of three weeks on condition that:

(a) the Mother provide the Father with at least four weeks written notice; and

(b) the Mother provide the Father with an itinerary and contact details for X, Y and Z during the period in which they are overseas at least two weeks in advance of the departure date.

16.

The Father shall forthwith enrol in and complete:

(a) a Men’s Behavioural Change Program at the Centre for Non-Violence in (omitted); and

(b) a Keeping Kids in Mind parenting program through CatholicCare, (omitted).

17.

The Father shall forthwith engage with the Department of Health and Human Services and follow any recommendations and engage with all programs recommended by that service.

18.

The Father shall continue to attend upon his counsellor Dr J as directed by her.

19.

The Father shall be entitled to receive school reports, school photograph order forms and newsletters from X, Y and Z’s schools, but is otherwise restrained from attending at their schools.

20.

The Mother shall immediately notify the Father in writing by email or text message in the event X, Y and Z or any of them suffer any serious illness or injury.

21.

The parties forthwith do all things necessary to enrol at (omitted) Supervised Contact Centre at (omitted).

22.

The Independent Children’s Lawyer shall provide a copy of the judgment delivered in this matter and a copy of these orders to:

(a) Headspace;

(b) Ms D;

(d) the Manager of the Men’s Behavioural Change Course at the Centre for Non-Violence in (omitted);

(e) Ms M; and

(f) Dr J.

23.

The Independent Children’s Lawyer shall provide a copy of these orders to the principal of X, Y and Z’s school/s.

24.

The Independent Children’s Lawyer and, if possible Ms D forthwith meet with X, Y and Z to discuss and explain these orders to them.

25.

Each of the parties by themselves and/or their agents be and are hereby restrained by injunction from:

(a) harassing or assaulting the other party;

(b) denigrating, rebuking or belittling the other party to or in the presence or the hearing of X, Y and Z, and from allowing X, Y and Z to remain in the presence of any other party who may be doing so;

(c) discussing these proceedings and/or parenting issues, to, with or in the presence or hearing of X, Y and Z and from permitting any other person to do so;

(d) exposing X, Y and Z to conflict or disagreements between the Mother or between any other person in the household; and

(e) telephoning the other parent save for a medical emergency concerning X, Y or Z.

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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