Kingley and Simmons and Anor - [2013] FamCA 546

FAMILY COURT OF AUSTRALIA

KINGLEY & SIMMONS AND ANOR

[2013] FamCA 546

FAMILY LAW – CHILDREN – Best Interests – With whom the child lives – With whom the child spends time – Where the child’s Mother is deceased – Where the child has been living with maternal relatives – Where the Father seeks the child live with him.
FAMILY LAW – PARENTAL RESPONSIBILITY – Non-parent parties.
FAMILY LAW – RISK – Where the Father has a history of alcohol related issues – Where the Father has made an undertaking to the court not to consume alcohol prior to or while the child is in his care.
FAMILY LAW – FAMILY VIOLENCE – Where allegations of family violence had been made against the Father by the Mother.
FAMILY LAW – CHILD ABUSE – Allegations – Where there was a finding of no risk to the child of sexual abuse in the Father’s care.

Family Law Act 1975 (Cth) Part VII, s4, s60B, s60CA, s60CC, s61DA, s61DB, s64B(2), s65(c), s65AA, s65D, s65DAA.

Cox & Pedrana [2013] FamCAFC 48.
Donnell v Dovey (2010) FLC 93-428.

APPLICANT:

Mr Kingley

1ST RESPONDENT / INTERVENOR:

Mrs Simmons

2ND RESPONDENT / INTERVENOR :

Mr Simmons

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

1363

2008

DATE DELIVERED:

Order made 5 July 2013; Reasons delivered 24 July 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

6 – 10 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

Smith & Associates

COUNSEL FOR THE 1^ST RESPONDENT /

INTERVENOR:

Mr Baston

COUNSEL FOR THE 2^ND RESPONDENT /

INTERVENOR:

Mr Baston

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED

That all previous Orders and Parenting Plans be discharged.
That C ARNDALE-KINGLEY, born … 2006 (“the child”) live with the father from Friday 5 July 2013.
That the father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making the decision about any such issue:
(a)use his best endeavours to advise Mrs Simmons and Mr Simmons (“the Intervenors”) in writing of the decision intended to be made;
(b)seek their written response in relation thereto;
(c)consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)advise them in writing as soon as reasonably practicable of ultimate decision.
That each party has responsibility for daily decisions about the day to day care, welfare and development of the child while she in is his or her care.
That the child shall spend time and communicate with the Intervenors, at all times as agreed between the parties and failing agreement as follows:
(a)in the fourth week of each calendar month: from 5.00 pm Friday to 4.00 pm Sunday;
(b)by…

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.

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Details

Case: [2013] FamCA 546
Decision Date: 5 July 2013

CaseChat Overview and Summary

The case of *Kingley and Simmons and Anor* involved a dispute concerning parenting orders for a child, C ARNDALE-KINGLEY. The proceedings were heard by Hogan J. The orders indicate that the father and the intervenors, Mr and Mrs Simmons, were parties to the dispute, alongside the child's mother, Mrs Simmons.

The court was required to determine the living arrangements for the child, the allocation of parental responsibility for long-term and day-to-day decisions, and the nature and extent of the child's time and communication with both the father and the intervenors. Additionally, the court addressed the father's compliance with a treatment plan for alcohol disorders and the role of an Independent Children's Lawyer.

Hogan J ordered that all previous parenting orders and plans be discharged. The child was to live with the father from a specified date, and the father was granted sole parental responsibility for all major long-term issues, subject to a process of consultation with the intervenors. Daily decisions were to be made by the party with whom the child was residing. The court also established a detailed schedule for the child's time with the intervenors, including specific weekend and holiday arrangements, and outlined communication protocols between the child and all parties. Crucially, the father was ordered to engage with a medical practitioner specialising in alcohol disorders, develop a relapse prevention plan, and undergo regular monitoring and testing, with the intervenors and the Independent Children's Lawyer to be kept informed of his progress.

The court further made orders restraining parties from discussing court proceedings in the presence of the child and from denigrating other parties or their families. Provisions were made for the exchange of contact details, information regarding the child's education and health, and for the Independent Children's Lawyer to be discharged after six months. The orders also included a fact sheet detailing the obligations and consequences of contravention.

Orders

Orders of the court

IT IS ORDERED

1. That all previous Orders and Parenting Plans be discharged.

2. That C ARNDALE-KINGLEY, born … 2006 (“the child”) live with the father from Friday 5 July 2013.

3. That the father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making the decision about any such issue:

(a) use his best endeavours to advise Mrs Simmons and Mr Simmons (“the Intervenors”) in writing of the decision intended to be made;

(b) seek their written response in relation thereto;

(d) advise them in writing as soon as reasonably practicable of ultimate decision.

4. That each party has responsibility for daily decisions about the day to day care, welfare and development of the child while she in is his or her care.

5. That the child shall spend time and communicate with the Intervenors, at all times as agreed between the parties and failing agreement as follows:

(a) in the fourth week of each calendar month: from 5.00 pm Friday to 4.00 pm Sunday;

(b) by telephone communication at all reasonable times and in particular each Wednesday between 7:00 pm and 7:30 pm with the Intervenors to initiate the telephone calls and the Father to facilitate those telephone calls, and ensure the child is given privacy during the calls;

(d) by post at all reasonable times;

(e) for the second half of the gazetted Christmas school holidays, commencing December 2013;

(f) commencing in 2014 for the second half of the June/July school holiday period.

6. That the child shall communicate with the party she is not spending time with on school holidays each Tuesday and Thursday between 6pm and 7pm, with the child to initiate the call.

7. That when the child is communicating with the other party/ies each party shall:

(a) ensure that the child is available to receive the telephone call;

(b) arrange for the child to telephone the other party on the following night if, for any unforeseen circumstance, the child misses the telephone call from that party;

8. That the child be at liberty to telephone any party at all reasonable times and the party in whose care the child is, at the time of the request, shall facilitate this.

9. That the child will spend time with the father on the Father’s Day weekend and, if that is a weekend on which, pursuant to Clause 5(a) above, the child would ordinarily be spending time with the Intervenors, then the child will spend time with the Intervenors from 5.00 pm Friday to 4.00 pm Sunday on the weekend immediately after the Father’s Day weekend.

10. That unless otherwise agreed between the parties, all handovers shall occur at a named Service Station.

11. That the parties shall communicate with each other about the child in writing including via e-mail and the father and Intervenors shall each inform the other of an email address for use in such communication.

12. That each party refrain from denigrating or making critical or derogatory remarks about any other party and any member of that party’s family to the child or in the presence or within the hearing of the child.

13. Each party shall do all things reasonably necessary to remove the child from the presence of any other person who makes any denigrating, critical or derogatory remarks about any other party or members of another party’s family to the child or in the presence or within the hearing of the child.

14. That the parties be restrained and an injunction be granted restraining the parties from discussing any Court proceedings in the presence or hearing of the child.

15. That each party shall provide to the others a contact telephone number and residential address and shall advise of any change to the same within 48 hours of such change occurring.

16. That each party shall keep the others informed of the details of the child’s school, day care and health care professionals and advise of any change to that information within 7 days of any change.

17. That each party shall advise the others, as soon as is reasonably practicable, of any serious illness or medical emergency that relates to the child.

18. That by this Order any educational facility at which the child attends and any health service provider upon whom the child attends is hereby authorised to provide to the parties, at their cost, any information, document or thing in relation to the child (including, but not limited to reports, letters, photographs and the like) and to discuss all matters pertaining to the child’s education, health and wellbeing.

19. That the parties shall be allowed to attend any school or extracurricular activities that a parent is entitled to attend.

20. That within 7 days of the date of this Order, the father shall engage a medical practitioner who specialises in the treatment of people with alcohol disorders (“the treating practitioner”).

21. That within one month of the date of this Order the father shall attend upon the treating practitioner in order to develop a lifelong Prevention of Relapse Plan which shall be reviewed from time to time as directed by the treating practitioner.

22. That the father shall comply with all reasonable directions made by the treating practitioner in relation to the implementation of the lifelong Prevention of Relapse Plan.

23. That the father will attend upon the treating practitioner on a monthly basis for 12 months from the date of this Order and, thereafter, as directed by the treating practitioner.

24. That the father direct the treating practitioner to require him to undergo random monthly blood tests of his Carbohydrate Deficient Transferren levels for 12 months from the date of this Order and, thereafter, as recommended by the treating practitioner for as long as is therapeutically indicated.

25. That the father comply with any request made by his treating practitioner for drug and alcohol testing, including for his Carbohydrate Deficient Transferren levels, within 24 hours of receiving such request from his treating practitioner.

26. That within 24 hours of receiving confirmation of his performance of any test requested by the treating practitioner, the father shall forward a copy of the same to the Intervenors, the Independent Children’s lawyer and his treating practitioner.

27. That the father will provide the Independent Children’s Lawyer and the Intervenors with the contact details of the treating practitioner.

28. That the Independent Children’s Lawyer shall have leave to provide to the father’s treating practitioner:

(a) the reports prepared by Ms M, Family Consultant, dated June/July 2012 and 11 April 2013;

(b) the report prepared by Dr D dated 18 September 2009;

(d) the report prepared by Ms X dated 9 May 2008;

(e) the report prepared by Dr L dated 19 March 2013;

(f) the report prepared by Dr A dated 29 April 2012 (but actually prepared in 2013);

(g) a copy of the summary of the father’s drug testing results (which forms part of Exhibit 2(b) in the proceedings;

(h) a copy of Exhibit 3 in the proceedings.

29. That by this Order the father irrevocably authorizes the treating practitioner to liaise with the Independent Children’s Lawyer and the Intervenors so as to advise that he is attending as directed and is in compliance with the lifelong Prevention of Relapse Plan.

30. That by this Order the father irrevocably authorizes the treating practitioner to provide the Intervenors and the Independent Children’s Lawyer with any test results pertaining to the father’s alcohol use.

31. That the Intervenors and the Independent Children’s Lawyer are hereby restrained from divulging to any other person any information or documentation provided to them by the treating practitioner or the father in compliance with this Order without the written consent of the father or the leave of the Court unless such information or documentation is relied upon in parenting proceedings filed in a Court having jurisdiction to make parenting orders.

32. That in the event the father is charged with or receives Notice to Appear for any traffic and/or other offence in which having a prescribed blood alcohol content is an element, he shall within two (2) working days of being so charged or issued with a Notice to Appear, immediately inform the Intervenors and, if the Independent Children’s Lawyer is not discharged at the time of such receipt, the Independent Children’s Lawyer, of such fact.

33. That the Independent Child Lawyer be discharged after six (6) months from the date of this Order.

34. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached 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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