LEPSON & EVERILL (No.2) - [2018] FCCA 3814

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEPSON & EVERILL (No.2)

[2018] FCCA 3814

Catchwords:
FAMILY LAW – Final parenting hearing – unacceptable risk to child due to mother’s mental health – whether or not interim or final orders should be made.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CA, 60B(1), 60B(2), 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3).
Veteran Entitlements Act 1986

Cases cited:

Waterford & Waterford [2013] FamCA 33

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Applicant:

MR LEPSON

Respondent:

MS EVERILL

File Number:

MLC 12048 of 2017

Judgment of:

Judge Harland

Hearing dates:

22 & 23 October 2018

Date of Last Submission:

23 October 2018

Delivered at:

Melbourne

Delivered on:

20 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms Bonney

Solicitors for the Applicant:

Australian Family Lawyers

Counsel for the Respondent:

Ms Mallett

Solicitors for the Respondent:	J A Middlemis
Counsel for the Independent Children's Lawyer:	Mr Tesoriero
Solicitors for the Independent Children's Lawyer:	Heinz & Partners

ORDERS

All previous orders be discharged.
The child [X] born …2011 (“the child”) live with the father.
The father have sole parental responsibility of the child.
With respect to major long term issues the father will contact the mother in writing and provide his views in relation to any such issue. The mother and father will make a genuine effort to come to a joint decision about any issue.
If no agreement is reached between the parties with respect to major long term issues then within 14 days the father will make the final decision and advise the mother in writing of the decision.
The child spend time with the mother as follows:
(a)For three Sundays in four from 11.00am to 5.00pm alternating between Town A and Melbourne unless otherwise agreed;
(b)For three Wednesdays each month from the conclusion of school or 3:30pm until 7:30pm and during school holidays the mother’s time will be extended to 11.00am until 7.00pm;
(c)For one Wednesday each month from 4:30pm until 8:00pm to be supervised by the paternal grandmother;
(d)By phone on each Tuesday and Thursday between 6:30pm and 7:00pm and at any time the child wishes to do so with such phone call to be monitored by the father; and
(e)At other times as agreed in writing between the parties.
That the parties shall conduct the changeovers in Melbourne at the father’s house, unless otherwise agreed.
All time the mother spends with the child be supervised by MR D or other supervisor as agreed between the parties save that the paternal grandmother will supervise an after school occasion once per month as agreed in writing between the mother and the paternal grandmother with the mother to confirm her attendance 24 hours prior.
The mother provide the psychiatric assessment of Dr E dated 17 August 2018 and the family report of Ms F dated 28 September 2018 and these reasons to whoever she engages to provide her with treatment.
The mother provide an irrevocable authority…

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 LEPSON & EVERILL (No.2)

Details

AGLC: Lepson and Everill (No.2) [2018] FCCA 3814
Case: [2018] FCCA 3814
Decision Date: 20 December 2018

CaseChat Overview and Summary

This matter concerned a final parenting hearing before Judge Harland, where the primary dispute revolved around the risk posed to the child, [X], by the mother's mental health. The court was tasked with determining whether interim or final parenting orders should be made in light of these concerns.

The central legal issues before the court were whether the mother's mental health presented an unacceptable risk to the child's safety and wellbeing, and consequently, what form of parenting orders, interim or final, were appropriate to ensure the child's best interests. The court also had to consider the extent of the mother's future involvement in the child's life and the conditions under which any contact should occur.

Judge Harland reasoned that the evidence, including psychiatric and family reports, indicated an unacceptable risk to the child due to the mother's mental health. Applying the paramountcy principle of the child's best interests, the court made final orders that the child live with the father and that the father have sole parental responsibility. While the mother was granted specific supervised time with the child, this was subject to stringent conditions, including supervision by agreed individuals and the paternal grandmother, and required the mother to engage with treatment and provide authorities for her treating psychiatrist to report to the father. The court also imposed orders restraining the parties from discussing the proceedings or denigrating each other in the child's presence, and outlined a pathway for the mother to seek unsupervised time in the future, contingent on further psychiatric assessment and mediation.

Orders

Orders of the court

All previous orders be discharged.

The child [X] born …2011 (“the child”) live with the father.

The father have sole parental responsibility of the child.

With respect to major long term issues the father will contact the mother in writing and provide his views in relation to any such issue. The mother and father will make a genuine effort to come to a joint decision about any issue.

If no agreement is reached between the parties with respect to major long term issues then within 14 days the father will make the final decision and advise the mother in writing of the decision.

The child spend time with the mother as follows:

(a) For three Sundays in four from 11.00am to 5.00pm alternating between Town A and Melbourne unless otherwise agreed;

(b) For three Wednesdays each month from the conclusion of school or 3:30pm until 7:30pm and during school holidays the mother’s time will be extended to 11.00am until 7.00pm;

(d) By phone on each Tuesday and Thursday between 6:30pm and 7:00pm and at any time the child wishes to do so with such phone call to be monitored by the father; and

(e) At other times as agreed in writing between the parties.

That the parties shall conduct the changeovers in Melbourne at the father’s house, unless otherwise agreed.

All time the mother spends with the child be supervised by MR D or other supervisor as agreed between the parties save that the paternal grandmother will supervise an after school occasion once per month as agreed in writing between the mother and the paternal grandmother with the mother to confirm her attendance 24 hours prior.

The mother provide the psychiatric assessment of Dr E dated 17 August 2018 and the family report of Ms F dated 28 September 2018 and these reasons to whoever she engages to provide her with treatment.

10.

The mother provide an irrevocable authority to her treating psychiatrist that authorises him or her to notify the father if the mother fails to engage or follow the treatment regime.

11.

The parties do all things to engage with a family therapy practitioner and follow their reasonable directions in relation to attendance at appointments.

12.

The parties be authorised to provide a copy of these orders to the School 1 Primary school.

13.

The parties be restrained from:

(a) Discussing these proceedings or the material filed in these proceedings; and

(b) Denigrating the other party or their family members,

in the presence, sight or hearing of the child.

14.

Prior to the mother filing an application pursuant to order 14 herein, the parties shall attend mediation.

15.

That the mother be permitted to file an application seeking unsupervised time with the child upon filing an affidavit by a psychiatrist addressing the mother’s mental health and risk issues as referred to in:

(a) Dr E’s report;

(b) The family report by Ms F; and

16.

Any application brought by the mother shall be listed before Her Honour Judge Harland if possible.

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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