LAWSON & HILL - [2016] FamCA 1147

FAMILY COURT OF AUSTRALIA

LAWSON & HILL

[2016] FamCA 1147

FAMILY LAW – CHILDREN – Where the father seeks an order for equal shared parental responsibility but for the child to live with the mother – Where the father seeks orders in relation to time with child beginning with supervised time and progressing to unsupervised time – Where the mother seeks an order for sole parental responsibility – Where the mother seeks an order for the father to spend time with the child once per month at a supervision agency – Where the father suffers from at least one serious mental disorder – Where the father’s mental status problem is unlikely to be significant improved by future treatment – Where a history of complaints and withdrawal of services have been made by the those agencies providing supervision of the father’s time with the child due to the father’s inappropriate behaviour – Where there is an unacceptable risk of the child’s time with his father being harmful to him unless that time is properly supervised – Where there is a high level of conflict between the parties and the father has engaged in family violence – Where the presumption of equal shared parental responsibility does not apply – Where it is in the child’s best interests for the mother to have sole parental responsibility for making decisions about major long term issues but she is to notify the father about the implementation of any decision that she makes – Where the father’s application for the child’s name to be changed is dismissed – Where the father’s application for the child’s school to be changed is dismissed – Where the father seeks orders that the child attend a program where he will learn about Judaism – Where orders are made for the mother to take the child to this program at a Synagogue closer to her place of residence – Where orders are made for the father to spend supervised time with the child for four hours per month.

Family Law Act 1975 (Cth)

Reynolds & Sherman (2015) FLC 93-659

Rice v Asplund (1979) FLC 90-725

APPLICANT:

Mr Lawson

RESPONDENT:

Ms Hill

INDEPENDENT CHILDREN’S LAWYER:

Mr Christaki

FILE NUMBER:

SYC

1626

2012

DATE DELIVERED:

23 December 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

4 - 7 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

SOLICITOR FOR THE APPLICANT:

Aston Legal

COUNSEL FOR THE RESPONDENT:

Ms Giacomo

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All previous parenting orders are discharged.
The mother have sole parental responsibility for C, born … 2010 (“the child”).
The mother shall from time to time notify the father of her intention to make any decision about any major long term issue in relation to the child and notify the father from time to time about her implementation of any decision…

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

AGLC: LAWSON & HILL [2016] FamCA 1147
Case: [2016] FamCA 1147
Decision Date: 23 December 2016

CaseChat Overview and Summary

The case involved a father seeking orders for equal shared parental responsibility and supervised time with his child, progressing to unsupervised time. The mother sought sole parental responsibility and limited supervised time for the father, specifically once per month at a supervision agency. The court was required to determine the most appropriate parenting arrangements for the child, considering the father's significant mental health issues, a history of inappropriate behaviour during supervised contact, high levels of conflict between the parents, and instances of family violence.

The court considered the presumption of equal shared parental responsibility under the *Family Law Act 1975* (Cth) but found it did not apply in this instance. The primary legal issue was to determine what orders were in the child's best interests, particularly in light of the unacceptable risk of harm to the child if contact with the father was not properly supervised. The court also had to address the father's applications regarding the child's name and schooling, and the child's religious education.

Applying the principles of *Reynolds & Sherman* and *Rice v Asplund*, the court found that the presumption of equal shared parental responsibility was rebutted due to the unacceptable risk of harm. The court reasoned that the father's mental health issues were unlikely to significantly improve and that past supervision agencies had withdrawn services due to his behaviour. Consequently, the court ordered that the mother have sole parental responsibility for major long-term decisions, though she was to notify the father of their implementation. The father's applications to change the child's name and schooling were dismissed.

The court ordered that the child live with the mother and spend supervised time with the father for four hours per month during school terms and for four hours on two days during school holidays, with specific provisions for costs and supervision arrangements. The father was also restrained from interrogating supervisors and from attending school events. The court made orders for the mother to facilitate the child's attendance at a Jewish program. Further orders addressed communication between the parties, the father's access to school and medical information about the child, and the father's ongoing treatment.

Orders

Orders of the court

All previous parenting orders are discharged.

The mother have sole parental responsibility for C, born … 2010 (“the child”).

The mother shall from time to time notify the father of her intention to make any decision about any major long term issue in relation to the child and notify the father from time to time about her implementation of any decision that she has made in relation to any major long term issue concerning the child and the father is not to interfere in any way with the mother making or implementing any such decision.

The father’s application for the child’s name to be changed is dismissed.

The father’s application for the parties to do what is necessary to change the child’s schooling is dismissed.

The child live with the mother.

The child spend time with the father each school term as follows:

7.1. For four hours on Saturday on the weekend at the conclusion of the first week of school term, on the fifth weekend of school term and on the ninth weekend of school term (if applicable);

7.2. Such times are to be supervised by X Contact Centre or such other supervising organisation or agency (“the supervisor”) as agreed between the parties in writing from time to time;

7.3. In the event of the parties failing to agree on the times, then the time the child spends with his father shall be from 11.30am to 3.30pm;

7.4. Father’s Day between 11.30am and 3.30pm which time is not additional but in lieu of time on the regular weekend that the father would spend time with the child (the closest weekend when the father would otherwise have the child will be suspended and in lieu the father will have time with the child on Father’s Day);

7.5. The time in accordance with this order be suspended during all school holidays;

7.6. The mother pay for the first $200 of the costs of the supervisor on any occasion during school term and subject to order 15, the father pay all other costs of the supervisor (including costs in the school holidays).

The child spend time with the father during school holidays as follows:

8.1. For four hours on two days during the second half of the first, second and third term school holidays;

8.2. For four days in the second half of the fourth term school holidays such days to be nominated by the father to the mother on 28 days’ notice;

8.3. The father pay for all costs of the supervisor during school holidays.

In the event that Mother’s Day falls during any period the child is to spend time with the father then that time shall be suspended and will take place the following weekend.

10.

The father and mother shall comply with all rules, regulations, requirements and directions of X Contact Centre or the supervisor as communicated by X Contact Centre or the supervisor to the parties. The father is not to interrogate X Contact Centre or the supervisor in relation to their requirements or directions.

11.

The four hours referred to in order 7 that the child spends with the father shall commence at the time the supervisor and the child meet the father and end at the time the supervisor and the child leave the father.

12.

For the purpose of changeover the mother or her nominee shall deliver the child to a location at a time as agreed between the mother and X Contact Centre or the supervisor and shall collect the child from the same location at the conclusion of the child’s time with the father.

13.

Unless otherwise agreed by the parties in writing, the location for changeover shall be McDonalds at Suburb U.

14.

In the event that:

14.1. the child is ill and cannot attend to spend time with the father in accordance with these orders then the mother shall do all things necessary to provide sufficient notice, 24 hours if possible, to the father and shall provide a medical certificate to evidence such illness;

14.2. the supervisor is ill and cannot attend to supervise the child’s time with the father in accordance with these orders then the time shall not occur and the father shall provide adequate notice of such illness to the mother;

14.3. the child’s time with the father is unable to occur as a result of either of the reasons referred to in order 11.1 or 11.2 then the mother shall arrange for make-up time to occur on the following weekend but if that is not possible, as soon as it can practicably be arranged, but unless the parties agree in writing, not added to the time the child is already to spend to the father.

15.

Each party is to pay 50 per cent of any or all late fees associated with the cancellation of a scheduled supervised occasion.

16.

During the periods the child is due to spend time with the father, the paternal grandparents and extended paternal family shall be permitted to attend such time.

17.

There be no electronic or telephone communication between the child and the father.

18.

The Independent Children's Lawyer and the parties have leave to make available to X Contact Centre or the supervisor a copy of these Orders and Reasons together with copies of the reports and letter prepared by Dr E.

19.

The parties have leave to provide to their respective treating medical and mental health professionals and the child’s treating medical and mental health professionals, copies of these Orders and Dr E’s reports.

20.

The mother is to:

20.1. sign all documents and do all things necessary to:

20.1.1. authorise the school, pre-school or day care at which the child may from time to time attend:

20.1.1.1. to furnish the father with copies of all school reports, notices and advices concerning:

20.1.1.1.1. the child; and

20.1.1.1.2. any activity involving the child;

and

20.1.1.2. to make available to the father copies of any school photographs of the child at his expense

20.2. notify the father immediately of:

20.2.1. any major illness suffered by the child;

20.2.2. any hospitalisation of the child;

and

20.3. make available to the father copies of any medical report or reports that may be sent to the mother in connection with such illness or hospitalisation;

and

20.4. authorise:

20.4.1. any hospital in which the child may be admitted; and

20.4.2. any medical practitioner under whose care the child may be;

to provide to the father in writing information about diagnoses, treatment and prognosis of the child.

21.

The father shall be restrained from communicating with the child’s treating medical or mental health professionals and schools other than to request the specified documentation be forwarded to him in relation to the child and for no other purpose.

22.

The father be restrained from attending the child’s extra-curricular activities and school for all school related events including parent/teacher interviews, parent days, assemblies, concerts and the like events to which parents are invited.

23.

The father shall continue to attend all appointments with and follow all advice of:

23.1. his psychologist, Ms Z; and

23.2. his psychiatrist, Dr F (or any psychiatrist to whom Dr F refers the father), including following all recommendations as to medication and treatment and including the filling of all prescriptions for prescribed medications at his own expense.

24.

Each party is restrained from denigrating the other to the child or in the presence or hearing of the child and shall not cause or permit any other person so to do.

25.

For the purposes of communication between the parties, the father is restrained from communicating with or attempting to communicate with the mother other than by short email for the sole purpose of indicating to the mother any difficulty that he might have from time to time in being available to spend time with the child or to very briefly respond to or acknowledge any email sent by the mother to the father relating to any difficulty the mother has in making the child available on any particular occasion.

26.

Each party is to provide the other with an email address to which emails can be sent by one to the other from time to time in accordance with these orders.

27.

The father shall, as soon as is practicable, obtain from Bupa or any medical health insurer of which the father is a member from time to time, a second card for the child and provide that card by forwarding it to the mother’s lawyers as soon as is practicable.

28.

The mother is to do all things and sign all documents necessary to ensure the child is enrolled in or is able to participate in Y Program at the T Synagogue or similar program.

29.

The mother take the child to the T Synagogue for the Y Program or similar program for two hours on a Sunday every second week during school term, unless the child is ill, attending a special family event or is away on holidays.

30.

The mother be permitted to travel with the child outside the Commonwealth of Australia upon giving the father 21 days’ notice in writing of her intention to do so. That notice shall include travel destination and dates of travel.

31.

The mother always refer to the father as the father of the child and the father always refer to the mother as the mother of the child and neither party encourage the child to refer to any other person as his mother or father by any name or other term.

32.

The mother be restrained from smoking cigarettes in the vicinity of the child and is to ensure no other person does so and in particular, in the same room the child is in or in any motor vehicle in which he is travelling.

33.

All other outstanding applications and cross applications are otherwise dismissed.

34.

If it is initiated by the mother in writing, the parties may confer in writing and agree in writing to vary the terms of any of these orders at any time.

35.

Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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