FAMILY COURT OF AUSTRALIA
| LOVERIDGE & EMERY AND ANOR | [2011] FamCA 203 |
| FAMILY LAW - DISQUALIFICATION APPLICATION - father’s application for judicial officer to disqualify himself by reason of apprehended bias – judge had previously represented the mother briefly in other proceedings pro bono – disqualification by association should only occur if there are substantial grounds – father failed to explain how the judicial officer’s past association with the mother may cause departure from impartial adjudication – father unreasonably delayed his objection – waiver of the application – application dismissed FAMILY LAW - CHILDREN – Parental responsibility – past family violence – finding that father was the principal perpetrator of family violence – father fails to acknowledge violent behaviour and its impact on others – no evidence of present family violence – child is not exposed to unacceptable risk of family violence – child has a meaningful relationship with the maternal grandmother – neither parent is willing or able to facilitate close and continuing relationships between the child and the other – maternal grandmother is willing and able to facilitate relationships between the child, parents and half-siblings – both parents have long histories of illegal drug use – both parents suffer psychological and emotional instability – presumption of equal shared parental responsibility is rebutted – sole parental responsibility is allocated to the maternal grandmother FAMILY LAW - CHILDREN – with whom the child shall live – child’s living arrangements are inextricably linked to parental responsibility – the child has lived in a stable arrangement with the maternal grandmother for some time – the child shall continue to live with the maternal grandmother FAMILY LAW - CHILDREN – with whom the child shall spend time – father’s emotional instability may cause emotional instability in the child – no evidence to infer the father’s condition will improve – father shall spend supervised time with the child on an indefinite basis – father shall have written communication with the child – the mother has a good relationship with the maternal grandmother – time spent by the child with the mother is at the discretion of the maternal grandmother |
| Evidence Act 1995 (Cth) s 122 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG(1)(b), 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 69ZU, 94(1AA) |
| Aldridge & Keaton (2009) FLC 93-421 Allesch v Maunz (2000) 203 CLR 172 Bienstein v Bienstein (2003) 195 ALR 225 Dennett & Norman [2007] FamCA 57 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Goode & Goode (2006) FLC 93-286 H & K [2001] FamCA 687 Johnson v Johnson (2000) 201 CLR 488 Jones v Dunkel (1959) 101 CLR 298 Kartinyeri and Anor v Commonwealth of Australia (1998) 156 ALR 300 Livesey v NSW Bar Association (1983) 151 CLR 288 Marriage of B & B (1993) FLC 92-357 McCall & Clark (2009) FLC 93-405 Mead v Mead (2007) 235 ALR 197 Moose v Moose (2008) FLC 93-375 MRR v GR (2010) 240 CLR 461 Potts &… |
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- AGLC
- Loveridge & Emery & Anor [2011] FamCA 203
- Case
- [2011] FamCA 203
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the judicial officer should disqualify himself based on the apprehended bias claim, and if not, to make final parenting orders for the child. This involved assessing the risk of family violence, the child's best interests, the meaningfulness of relationships, and the capacity of the parents and maternal grandmother to facilitate the child's relationships with others. The court also had to consider whether the presumption of equal shared parental responsibility was rebutted and, if so, to allocate parental responsibility accordingly, including determining with whom the child should live and spend time.
Austin J dismissed the father's disqualification application, finding that any association was remote and insufficient to give rise to substantial grounds for disqualification. The father had also unreasonably delayed his objection, leading to a waiver of the application. Regarding the parenting orders, the court found that the father was the principal perpetrator of past family violence and had failed to acknowledge his behaviour. While no present family violence was evident, the court found that the presumption of equal shared parental responsibility was rebutted due to the parents' histories of illegal drug use and psychological instability. The court concluded that the child was not exposed to an unacceptable risk of family violence and that the maternal grandmother was willing and able to facilitate the child's relationships.
Consequently, the court ordered that the maternal grandmother have sole parental responsibility for the child, with the child to live with her. The father was granted supervised time with the child for four hours every fourth weekend, with the supervisor to be nominated by a contact centre, and the father to bear the costs. The child was also to have written communication with the father. The mother's time with the child was left to the discretion of the maternal grandmother. The court also made orders restraining denigration, requiring notification of medical emergencies, and mandating therapy for the child with a clinician.
Orders
Orders of the court
1.
All previous parenting orders relating to the child J, born … September 2003, (“the child”) are discharged.
2.
The second respondent (maternal grandmother) shall have sole parental responsibility for the child.
3.
The child shall live with the second respondent.
4.
Each of the parties shall take all reasonable steps to ensure that the child spends supervised time with the applicant (father) for four hours every fourth weekend, commencing on the first weekend following compliance with Order 5(b) hereof.
5.
For the purpose of implementing Order 4 hereof:
(a) The supervisor of the time spent by the child with the applicant shall be staff at “Contact Centre 1” at Town 1, Queensland, or some other person or entity nominated by that organisation (“the supervisor”);
(b) The second respondent and applicant shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;
(c) The parties shall comply with all reasonable requests and directions of the supervisor;
(d) The applicant shall pay any costs of the supervisor;
(e) The time that is to be spent by the child with the applicant each fourth weekend shall commence at the time designated by the supervisor;
(f) The venue at which the time is to be spent by the child with the applicant each fourth weekend shall be designated by the supervisor;
(g) If on an occasion the child is due to spend time with the applicant that time together cannot be accommodated by reason of unavailability of the supervisor, then the time the child would otherwise have spent with the applicant shall be made-up at another time as close to the original time as can be arranged;
(h) The second respondent shall cause the delivery of the child to, and the collection of the child from, the designated venue at the commencement and conclusion of the time spent by the child with the applicant; and
(i) Leave is granted to the parties to provide a copy of these Orders to the supervisor;
6.
Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the applicant in the following manner:
(a) By the applicant being able to send letters, cards, and/or gifts to the child, not more frequently than fortnightly; and
(b) By the first and second respondents sending to the applicant any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the applicant.
7.
The second respondent shall take all reasonable steps to ensure that the child spends time and communicates with the first respondent (mother) at times and on such conditions as the second respondent sees fit.
8.
Each party is restrained from denigrating any of the others in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating any of the others.
9.
Each party shall notify the others of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parties about the condition and treatment of the child.
10.
The second respondent shall authorise and request the principal of any school attended by the child to provide to the applicant and first respondent, at their individual expense, copies of all school reports and school photograph order forms relating to the child.
11.
Each party shall forthwith inform the others, and keep the others informed, in writing, of their respective current residential address, landline telephone number, and mobile telephone number.
12.
The second respondent shall forthwith arrange for the child to consult and participate in therapy with a child clinician, and for that purpose:
(a) The second respondent shall meet any cost of that therapy;
(b) The second respondent shall inform the applicant and first respondent of the name and contact details of that clinician;
(c) The second respondent shall furnish to the clinician:
i) A copy of these Orders; and
ii) A copy of the single expert report of Dr R, psychiatrist, dated 12 March 2010.
13.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
14.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
15.
Any and all outstanding applications are dismissed.
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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