LOLLEY & LOLLEY - [2012] FamCA 380

FAMILY COURT OF AUSTRALIA

LOLLEY & LOLLEY

[2012] FamCA 380

FAMILY LAW – CHILDREN – parental responsibility – with whom a child lives – with whom a child spends time and communicates – subject child is five years of age - where prior interim orders provided for the curtailment of and the imposition of supervision on the child’s time with the mother – where the imposition of supervision was supported by expert evidence – the child has a meaningful relationship with the father from which he derives considerable benefit – where the child’s relationship with the mother is important but the relationship is qualitatively inferior to the relationship he enjoys with the father – where the child will derive a benefit from retaining his relationship with the mother – child is too young to have any weight attributed to his views – where the mother asserts the child is affected by some form of undiagnosed organic condition which impairs the child’s socialisation and explains the child’s violent behaviour – expert evidence supports finding the child’s behavioural problems are attributable to his insecure attachment to the mother and not some underlying organic condition – finding mother’s impaired parenting capacity was the primary cause of the child’s insecure attachment to her – danger of emotional harm posed by the mother to the child has not been ameliorated by the imposition of supervision – no order for child to spend time with the mother until their relationship can be repaired under the tutelage and supervision of a therapist - presumption of equal shared parental responsibility not applied – interim orders allocating sole parental responsibility to father and for child to live with father

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE
Family Law Rules 2004 (Cth) r 15.41

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159
Marriage of Scott (1994) FLC 92-457
Marriage of L & T (1999) 25 Fam LR 590
McCall v Clark (2009) 41 Fam LR 483
McKenzie v McKenzie (1970) 3 All ER 1034
MRR v GR (2010) 240 CLR 461
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Mr Lolley

RESPONDENT:

Ms Lolley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

2985

2010

DATE DELIVERED:

24 May 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

30 April, 1, 2 & 3 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Catherine Henry Partners

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders, pending further order

All former parenting orders relating to the child J Lolley, born … October 2006, are discharged.
Subject to the father’s compliance with Orders 4 and 5 hereof:
(a) The father shall have…

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 LOLLEY & LOLLEY

Details

AGLC: LOLLEY & LOLLEY [2012] FamCA 380
Case: [2012] FamCA 380
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered the parenting arrangements for a five-year-old child, J Lolley, born in October 2006. The proceedings involved the child's parents, Mr. Lolley (the applicant) and Ms. Lolley (the respondent), and the Independent Children's Lawyer. The dispute centred on parental responsibility, the child's residence, and the nature and extent of his time with each parent, particularly in light of the child's behavioural difficulties and the parents' differing views on their causes and management.

The court was required to determine with whom the child should live and spend time, and how parental responsibility should be allocated. Key issues included assessing the child's relationships with each parent, evaluating the mother's assertion of an undiagnosed organic condition affecting the child's behaviour, and determining the impact of the mother's parenting capacity on the child's attachment and behaviour. The court also had to consider whether the presumption of equal shared parental responsibility applied and the appropriateness of prior interim orders that had curtailed and supervised the child's time with the mother.

Justice Austin found that the child had a meaningful and beneficial relationship with his father, which was qualitatively superior to his relationship with his mother. Expert evidence indicated that the child's behavioural problems stemmed from an insecure attachment to the mother, caused by her impaired parenting capacity, rather than an organic condition. The court concluded that the danger of emotional harm posed by the mother had not been ameliorated by supervision. Consequently, the presumption of equal shared parental responsibility was not applied.

The court ordered that the father have sole parental responsibility for the child and that the child live with the father. Further orders were made for the Independent Children's Lawyer to engage a therapist to facilitate therapy for the child and parties to repair the relationship between the child and mother, and to address the child's anxiety and social behaviour. No orders were made for the child to spend time with the mother until their relationship could be repaired under the guidance of the therapist.

Orders