Lyle & Keith - [2008] FMCAfam 178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LYLE & KEITH

[2008] FMCAfam 178

FAMILY LAW – Parenting – best interests of the child – parental anxiety – relevance of past criminal history – gradual increase in unsupervised time.

Family Law Act 1975, Part VII, ss.60B (1)(a), (1)(b), 60B (2)(a) & (b), 60CA, 60CC (2)(a), (2)(b), (3), (3)(a) – (d), (3)(g), (i), (l), (j) & (k), (4)(a), 61DA 61DA (4), 65DAA, 106A

Cornwell v R [2007] HCA 10; (2007) 234 ALR 51
Goode v Goode (2007) 36 Fam LR 422
Keach v Keach [2007] FamCA 1496; (2007) FLC ¶93-353
Rice and Asplund (1979) FLC ¶90-725
SPS v PLS [2008] FamCAFC 16

Applicant:

MR LYLE

Respondent:

KEITH

File Number:

CAC 4 of 2007

Judgment of:

Neville FM

Hearing date (at Wagga Wagga)

11 February 2008

Date of Last Submission:

26 February 2008

Delivered at:

Canberra

Delivered on:

8 May 2008

REPRESENTATION

Counsel for the Applicant:

Mr Lyle in person

Solicitors for the Respondent:

Mr Pellandine from

Jensens Solicitors (Lennox Head)

Independent Children’s Lawyer:

Ms Godtschalk (Counsel)
Instructed by Robb & Associates (Albury)

ORDERS

Until further order, the Mother will have sole parental responsibility for the child, S born in 1999.
S will continue to live with her Mother.
The Father is to spend time with S as follows:–
(a)For a period of two months:
(i)for a block period of four hours per fortnight, two hours of the time spent to be supervised, and two hours unsupervised,
(ii)such times to be agreed between the parties, and in consultation with the Contact Centre, and
(iii)the supervised time shall be at the beginning and end of the time together.
(b)For a further period of two months:
(i)for a block of five hours per fortnight, two hours of the time spent to be supervised, three hours unsupervised,
(ii)such times to be agreed between the parties, in consultation with the Contact Centre, and
(iii)the supervised time shall be at the beginning and at the end of the time together.
(c)For a further period of two months:
(i)for a block of six hours per fortnight, two hours of the time spent to be supervised, four hours unsupervised,
(ii)such times to be agreed between the parties, in consultation with the Contact Centre, and
(iii)the supervised time shall be at the beginning and at the end of the time together.
(d)For a further period of six months:
(i)for a block period of six hours each fortnight, one hour to be spent supervised, five hours to be unsupervised,
(ii)such times to be agreed between the parties, in consultation with the Contact Centre, and
(iii)the supervised time shall be at the beginning and at the end of the time together.
The Father will advise the Contact Centre 48 hours ahead of time of his planned activities with S away from the Centre.
Both of S’s parents will continue to work and liaise with the Contact Centre staff and do all such acts as recommended by them to assist the Mother in…

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 Lyle & Keith

Details

AGLC: Lyle & Keith [2008] FMCAfam 178
Case: [2008] FMCAfam 178
Decision Date: 8 May 2008

CaseChat Overview and Summary

Lyle and Keith were parents to a child, S, born in 1999. The dispute between them came before the Family Court, focusing on parenting arrangements for S. The primary concern was the management of S's unsupervised time with her father, given the mother's anxiety about this arrangement. The court needed to decide on the allocation of parental responsibility, the frequency and conditions of the father's contact with S, and measures to support the mother in managing her anxiety.

The legal issues revolved around determining the best interests of the child, considering the mother's anxiety and the need for the father to have meaningful contact with S. The court had to balance the rights of both parents with the welfare of the child, ensuring that S's emotional and psychological needs were met. The court also needed to address the practicalities of contact, including supervision, timing, and communication between the parents.

The Family Court concluded that sole parental responsibility should be vested in the mother, allowing S to continue living with her. The father was granted supervised and unsupervised contact with S, with the frequency and conditions of these visits gradually increasing over time to accommodate the mother's anxiety. The court ordered the father to undergo drug and alcohol testing, and both parents were instructed to refrain from speaking negatively about each other in front of S. Additionally, the father was required to sign necessary forms for S's passport to facilitate travel with her mother, and mediation was mandated to address ongoing disputes.

The final orders included provisions for the mother's sole parental responsibility, detailed arrangements for the father's contact with S, requirements for both parents to liaise with a Contact Centre, and restrictions on communication between the parents and S. Both parents were also directed to attend mediation and to ensure S's attendance at school activities with appropriate notice. The Independent Children's Lawyer was tasked with informing S of the court's orders. An updated family report was requested, and the matter was scheduled for further review in February 2009.

Orders

Orders of the court

Until further order, the Mother will have sole parental responsibility for the child, S born in 1999.

S will continue to live with her Mother.

The Father is to spend time with S as follows:–

(a) For a period of two months:

(i) for a block period of four hours per fortnight, two hours of the time spent to be supervised, and two hours unsupervised,

(ii) such times to be agreed between the parties, and in consultation with the Contact Centre, and

(iii) the supervised time shall be at the beginning and end of the time together.

(b) For a further period of two months:

(i) for a block of five hours per fortnight, two hours of the time spent to be supervised, three hours unsupervised,

(ii) such times to be agreed between the parties, in consultation with the Contact Centre, and

(iii) the supervised time shall be at the beginning and at the end of the time together.

(i) for a block of six hours per fortnight, two hours of the time spent to be supervised, four hours unsupervised,

(ii) such times to be agreed between the parties, in consultation with the Contact Centre, and

(iii) the supervised time shall be at the beginning and at the end of the time together.

(d) For a further period of six months:

(i) for a block period of six hours each fortnight, one hour to be spent supervised, five hours to be unsupervised,

(ii) such times to be agreed between the parties, in consultation with the Contact Centre, and

(iii) the supervised time shall be at the beginning and at the end of the time together.

The Father will advise the Contact Centre 48 hours ahead of time of his planned activities with S away from the Centre.

Both of S’s parents will continue to work and liaise with the Contact Centre staff and do all such acts as recommended by them to assist the Mother in managing her anxiety about S’s unsupervised time with the Father.

The Mother is restrained from following or interfering with the Father’s time with S and the Mother is to use her best endeavours to prevent other family members from doing the same.

Both parents are restrained from saying unkind or unpleasant things about the other to S or in her presence, or allowing any other person to do so.

The parties will attend mediation as recommended by Relationships Australia in Wagga Wagga, with both parties to contact the agency within 14 days of the date of these Orders to arrange for an intake assessment.

The Father is to sign all relevant and necessary forms to enable a passport to issue in S’s name, and that she be permitted to travel with her Mother overseas, provided only that Ms Keith provide Mr Lyle with an itinerary of any proposed travel at least four week’s prior to any such trip.

10.

In the event that Mr Lyle does not sign all relevant documents to enable a passport to issue in S’s name, that pursuant to section 106A of the Family Law Act 1975 the Court Orders that the Registrar of the Family Court is to execute an application for an Australian Passport in relation to the child S born in 1999.

11.

The Father is to undergo drug and alcohol urinalysis testing once in the first week of every month, over the next twelve months, the results of which are to be forwarded to the Contact Centre.

12.

The Mother will use her best endeavours to ensure all school reports and records for S are made available to the Father. She will inform him of any special activities (including concerts) to which parents are invited as soon as practicable. The Father is permitted to attend these activities provided that he gives the Mother 48 hours notice of his intention to do so.

13.

The Independent Children’s Lawyer will advise S of these Orders.

14.

It is requested that an updated family report be prepared in December 2008.

15.

The matter will be listed for further mention in Wagga Wagga in February 2009 on a date to be advised, to review the progress of these Orders.

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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