Luckwell & Anor and Herridge & Anor - [2011] FamCA 52

FAMILY COURT OF AUSTRALIA

LUCKWELL AND ANOR & HERRIDGE AND ANOR

[2011] FamCA 52

FAMILY LAW – CHILDREN – With whom a child lives – Best interests

1st APPLICANT:

Mr Luckwell Senior

2nd APPLICANT:

Ms Handerson

1st RESPONDENT:

Ms Herridge

2nd RESPONDENT:

Mr Luckwell

INTERVENOR:

Director General, Department of Human Services

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCF

702

2006

DATE DELIVERED:

10 February 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Cohen

HEARING DATE:

10-21 May, 2 June 2010.

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Graham

SOLICITOR FOR THE APPLICANTS:

Wood Roberts

COUNSEL FOR THE 1ST RESPONDENT:

Mr Wilkinson

SOLICITOR FOR THE 1ST RESPONDENT:

Krstina Wooi

COUNSEL FOR THE 2ND RESPONDENT:

Mr Mooney

SOLICITOR FOR THE 2ND RESPONDENT:

Jennifer Blundell & Associates

COUNSEL FOR THE INTERVENOR:

Ms Boyle

SOLICITOR FOR THE INTERVENOR:

Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That B born … April 2002 and H born … July 2003 shall live with the father.
That the father shall have sole parental responsibility for the said children.
That the mother shall spend time with the said children:
(a)commencing after one (1) month from the date of these orders on each alternate weekend from after school on Friday or from 5pm on a non-school Friday to the commencement of school on the immediately following Monday or Tuesday on a long weekend or to 9am on a Monday which is not a school day;
(b)from 9am on Mother’s Day to the commencement of school the next day if it falls on a weekend on which the mother would otherwise not spend time with the children;
(c)on the mother’s birthday:
(i)from after school on that day to the commencement of school the next day if it is a school day or to 9am the next day if it is not a school day;
(ii)from 9am on that day if it is not a school day and the mother would not otherwise spend time with the children on that day to the commencement of school the next day if it is a school day or to 9am the next day if it is not a school day and it falls on a day when the mother would not otherwise spend time with the children;
(d)commencing at the Easter school vacation 2013 from after school on the last day of term to 5pm on the seventh day thereafter in each of the children’s Easter, winter and spring school vacations;
(e)commencing at the Christmas school vacation 2013-2014 from:
(i)after school on the last day of term immediately prior to the Christmas school vacation on the twenty-first day thereafter in each such vacation commencing in an odd numbered year; and,
(ii)from 5pm on the twenty-first day to 5pm on the last Friday in each Christmas school vacation commencing in an even numbered year.
That for the purpose of implementing orders 1 and 3 on…

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: [2011] FamCA 52
Decision Date: 10 February 2011

CaseChat Overview and Summary

This case involved an application concerning the living arrangements and parental responsibility for two children, B and H. The dispute was heard by Justice Cohen.

The court was required to determine the primary residence of the children, who would have sole parental responsibility, and the specific arrangements for the mother to spend time with the children. Further issues included the conditions and restrictions surrounding the children's contact with their mother, including collection and return protocols, telephone contact limitations, and communication with schools. The court also had to consider the mother's entitlement to access medical and educational information and the restrictions on her seeking medical or other professional treatment for the children.

Justice Cohen ordered that the children, B and H, shall live with their father and that the father shall have sole parental responsibility for them. The orders detailed specific, complex arrangements for the mother to spend time with the children, including alternate weekends, public holidays, birthdays, and school vacations, with detailed provisions for collection and return. Significant restrictions were placed on the mother's contact with the father, and vice versa, and on telephone contact between the children and either parent when the children were in the care of the other. The mother was also restrained from making special appointments to speak to school staff without the father's consent and from making allegations of violence or abuse against the father or his family to school staff. Further orders stipulated the exchange of contact details, information regarding medical conditions and treatment, and restrictions on the mother seeking medical or other professional interventions for the children without court leave or in emergencies.

Orders

Orders of the court

That B born … April 2002 and H born … July 2003 shall live with the father.

That the father shall have sole parental responsibility for the said children.

That the mother shall spend time with the said children:

(a) commencing after one (1) month from the date of these orders on each alternate weekend from after school on Friday or from 5pm on a non-school Friday to the commencement of school on the immediately following Monday or Tuesday on a long weekend or to 9am on a Monday which is not a school day;

(b) from 9am on Mother’s Day to the commencement of school the next day if it falls on a weekend on which the mother would otherwise not spend time with the children;

(i) from after school on that day to the commencement of school the next day if it is a school day or to 9am the next day if it is not a school day;

(ii) from 9am on that day if it is not a school day and the mother would not otherwise spend time with the children on that day to the commencement of school the next day if it is a school day or to 9am the next day if it is not a school day and it falls on a day when the mother would not otherwise spend time with the children;

(d) commencing at the Easter school vacation 2013 from after school on the last day of term to 5pm on the seventh day thereafter in each of the children’s Easter, winter and spring school vacations;

(e) commencing at the Christmas school vacation 2013-2014 from:

(i) after school on the last day of term immediately prior to the Christmas school vacation on the twenty-first day thereafter in each such vacation commencing in an odd numbered year; and,

(ii) from 5pm on the twenty-first day to 5pm on the last Friday in each Christmas school vacation commencing in an even numbered year.

That for the purpose of implementing orders 1 and 3 on non-school days the mother, her mother, her father and her sister or any of them shall collect the children from and return them to the paternal grandfather’s home and at the time set by those orders for such collection and return and for thirty (30) minutes before and after that time the father and the paternal grandmother shall not come within one (1) kilometre of the paternal grandfather’s home.

That for the purpose of implementing orders 1 and 3 on non-school days the mother, her mother, her father and her sister or any of them when collecting and delivering the children shall not allow any other male person to accompany them or any of them at or within thirty (30) minutes before or after the time set by these orders for collection or return of the children unless the father and paternal grandfather consent in writing to that person collecting the children or accompanying them when the children are being collected or returned and in the event the mother or her parents or either of them are accompanied by any other male person at collection time without having first obtained such consent the paternal grand father shall refuse to deliver the children to the mother or her mother or father or sister or any of them and the time otherwise ordered herein for the children to spend with the mother on that collection shall hereby be forfeited or if at return time the mother, her mother or father or sister or any of them are accompanied by any other male person the immediately following period of time that otherwise by these orders the mother would spend with the children is hereby forfeited.

That there shall be no telephone contact between the children and either parent when the children are in the immediate care of the other parent or his or her surrogate until after two years from the date of these orders and thereafter:

(a) the children shall have telephone contact with the mother by the mother telephoning the children at her expense on one occasion in each week during school term but not on weekends during school term and on one occasion in each week during school holidays when the children are in the immediate care of the father or his surrogate; and,

(b) the children shall have telephone contact with the father at his expense on one occasion each week during school holidays when the children are in the immediate care of the mother or her surrogate.

That the mother and father are hereby restrained from speaking to one another by telephone and from texting one another except in order to make arrangements relating to the mother’s time with the children or in any emergency and for those purposes both parents are hereby entitled to record all telephone calls between them.

That the mother is hereby entitled to attend parent teacher interviews provided for them by the school relating to either child both together with the father and separately.

That the mother is hereby restrained from making special appointments to speak to school staff without the father’s prior consent in writing and is further restrained from saying anything to any member of staff at any school which the children or either of them attend which alleges or infers directly or indirectly that the father or any member of his family has committed acts of violence or sexual abuse.

10.

That the father shall forthwith inform the mother in writing of his contact telephone number and his father’s contact telephone number and any change in those numbers as well as any telephone number necessary to implement the orders herein for telephone contact between the children and the mother.

11.

That the mother shall forthwith inform the father in writing of her contact telephone number and any change in that number as well as any telephone number necessary to implement the orders herein for telephone contact between the children and the father.

12.

That the father shall forthwith inform the mother of any change in address of the paternal grandfather’s home.

13.

That the father and mother shall each be entitled to receive copies of all school reports, correspondence and other material ordinarily sent by the children’s schools or school to parents and both shall be entitled to obtain copies of school photographs of the children.

14.

Each parent is hereby entitled to provide any school or schools attended by the children with a copy of these orders.

15.

That the father is to keep the mother fully and promptly informed of any significant injury, medical or like condition affecting either child and shall forthwith notify the mother of any hospital, medical, dental or other treatment by a health professional either child has had or is to receive and shall authorise the person and organisation which are to provide or have provided that treatment to give the mother any information she seeks from that person or organisation.

16.

That except in an emergency the mother is hereby restrained from seeking medical, psychiatric, psychological, neurological, behavioural or educational treatment, therapy, counselling or advice about or for the children or either of them or subjecting them or either of them to any observations, examination, consultation, test, questionnaire, or admission to or appointment at or visit to any hospital, surgery or the likely premises of a health professional or pharmacy.

17.

That the mother is hereby restrained from taking the children or either of them to any police station or office of the Department of Human Services except in an emergency or in relation to an occurrence or occurrences which do not involve any allegation of a criminal act against the children or herself by the father or any member of his family without first obtaining leave of the Court or the Federal Magistrates Court after providing such Court with a copy of these orders and the final judgment in these proceedings.

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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