Martins and Denny - [2017] FCCA 2753

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARTINS & DENNY

[2017] FCCA 2753

Catchwords:
FAMILY LAW – Parenting – young and vulnerable children – risk of harm and neglect in mother’s care – capacity to meet children’s needs.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 65DAA

Cases cited:

Collins & Collins (1985) FLC 91-603
Goode v Goode (2007) 36 FamLR 422
Johnson & Page (2007) FamCA 1235
Jopson & Lilwall (No.2) [2016] FamCAFC 262
McCall & Clark [2009] FamCAFC 92
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Murphy & Murphy [2007] FamCA 795
Napier & Hepburn [2006] FamCA 1316
Roberts & Banks [2011] FamCA 662
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant:

MS MARTINS

Respondent:

MR DENNY

File Number:

NCC 1628 of 2015

Judgment of:

Judge Obradovic

Hearing dates:

8, 9 and 10 May 2017

Date of Last Submission:

10 May 2017

Delivered at:

Dubbo

Delivered on:

16 November 2017

REPRESENTATION

Counsel for the Applicant:

Ms Conte-Mills

Solicitors for the Applicant:

Phillip A Wilkins & Associates

Counsel for the Respondent:

Ms Webb

Solicitors for the Respondent:

Independent Children’s Lawyer:

Counsel for the Independent Children’s Lawyer:

DL H Solicitors

Legal Aid New South Wales

Ms Neville

ORDERS

All prior parenting orders are discharged.
The father shall have sole parental responsibility for the children Y born (omitted) 2013 and X born (omitted) 2014.
Notwithstanding order 2 above:
(a)The father is to notify the mother of his intention to make any major decisions in relation to the children with such notification to be provided to the mother by text message;
(b)The father is to notify the mother in the event of a serious illness, hospitalisation or emergency in relation to the children.
The children shall live with the father.
The children shall spend time with the mother as agreed between the parties and failing agreement:
(a)Commencing on 22 November 2017 and every third weekend thereafter;
(i)From 10am to 5pm on Saturday;
(ii)From 10am to 5pm on Sunday; and
(iii)At any other times as agreed between the parties in writing.
(b)Commencing on the first weekend in January 2020 and every third weekend thereafter;
(i)From 10am Saturday to 5pm Sunday;
(ii)At any other times as agreed between the parents in writing.
(c)In order to facilitate such time changeovers shall occur as agreed between the parties and failing agreement the father and/or his nominee are to deliver the children to the mother and/or her nominee inside McDonalds (omitted) at (omitted) at the commencement and the conclusion of time;
(d)The mother is restrained by injunction from permitting more than two adult persons attending together with her at changeover pursuant to these orders; and
(e)Until January 2020 the mother is restrained by injunction from taking the children to her place of residence at any time she is spending with the children.
Forthwith the mother and the father shall install Skype or other appropriate video conferencing application on any devices in their household, to be used for…

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 Martins and Denny

Details

AGLC: Martins and Denny [2017] FCCA 2753
Case: [2017] FCCA 2753
Decision Date: 16 November 2017

CaseChat Overview and Summary

In *Martins and Denny*, heard by Judge Obradovic, the dispute concerned parenting orders for two children, Y and X. The father sought sole parental responsibility and orders for the children to live with him, while the mother sought orders for the children to spend time with her.

The court was required to determine the best interests of the children, specifically regarding the allocation of parental responsibility, the living arrangements for the children, and the nature and extent of the time the children would spend with each parent. The court also had to consider the communication arrangements between the parents and the children, and the need for injunctions to protect the children from certain influences and to ensure respectful communication between the parents.

Judge Obradovic discharged all prior parenting orders and made orders for the father to have sole parental responsibility for the children, with the children to live with him. Notwithstanding the father's sole responsibility, the mother was to be notified of major decisions and any serious illness or hospitalisation. The court detailed specific arrangements for the children to spend time with the mother, including weekend time and future arrangements, with provisions for changeovers and injunctions restricting the mother from taking the children to her residence until January 2020. Extensive orders were made regarding communication between the parents and children, including the use of video conferencing and telephone, and the exchange of contact details. Injunctions were also granted restraining both parents from allowing the children to come into contact with intoxicated individuals, and both parents were enjoined from making derogatory remarks about the other in the children's presence. The father was ordered to continue engaging with a program, and both parents were to notify each other of hospitalisation or medical attention for the children. The application for costs by the Independent Children’s Lawyer was dismissed.

Orders

Orders of the court

All prior parenting orders are discharged.

The father shall have sole parental responsibility for the children Y born (omitted) 2013 and X born (omitted) 2014.

Notwithstanding order 2 above:

(a) The father is to notify the mother of his intention to make any major decisions in relation to the children with such notification to be provided to the mother by text message;

(b) The father is to notify the mother in the event of a serious illness, hospitalisation or emergency in relation to the children.

The children shall live with the father.

The children shall spend time with the mother as agreed between the parties and failing agreement:

(a) Commencing on 22 November 2017 and every third weekend thereafter;

(i) From 10am to 5pm on Saturday;

(ii) From 10am to 5pm on Sunday; and

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

(b) Commencing on the first weekend in January 2020 and every third weekend thereafter;

(i) From 10am Saturday to 5pm Sunday;

(ii) At any other times as agreed between the parents in writing.

(c) In order to facilitate such time changeovers shall occur as agreed between the parties and failing agreement the father and/or his nominee are to deliver the children to the mother and/or her nominee inside McDonalds (omitted) at (omitted) at the commencement and the conclusion of time;

(d) The mother is restrained by injunction from permitting more than two adult persons attending together with her at changeover pursuant to these orders; and

(e) Until January 2020 the mother is restrained by injunction from taking the children to her place of residence at any time she is spending with the children.

Forthwith the mother and the father shall install Skype or other appropriate video conferencing application on any devices in their household, to be used for the purpose of the children communicating with their parents.

The mother and father forthwith provide to each other and keep each other so informed at all times of their email address, Skype address (or other address for video conferencing), mobile phone and/or landline details to enable telephone and electronic communication in accordance with these orders and notify the other parent of any changes within 48 hours.

The children shall communicate with the mother by telephone each Tuesday and Thursday between 5pm and 5.30pm with the mother to initiate the communication to the father’s mobile phone in the first instance and the father to ensure that his mobile phone is in working order and ensure that the children are afforded privacy and that the phone is not placed on speaker phone.

The mother is to commence Skype or other appropriate video conferencing communication with the children in substitution of telephone communication pursuant to order (8) above upon the mother providing notice to the father by text message to his mobile phone of her Skype or other appropriate address and thereafter the children shall have Skype or video conferencing communication with the mother as agreed and failing agreement:

(a) Each Tuesday between 5pm and 5.30pm with the mother to initiate the Skype or video conferencing communication in the first instance;

(b) Each Thursday between 5pm and 5.30pm with the father to initiate the Skype communication in the first instance;

(c) On Mother’s Day, each of the children’s birthday, the mother’s birthday and Christmas Day with the father to initiate the Skype or video conferencing communication in the first instance between 5pm and 5.30pm or at such other times as agreed.

(d) In order to facilitate Skype or video conferencing communication pursuant to these Order:

(i) Each party is solely responsible for maintaining the cost and connection of their device and their data to enable Skype or video conferencing communication;

(ii) Each party is to do all acts and things to ensure that they have the appropriate equipment configured and working to facilitate Skype or video conferencing between the children and the mother;

(iii) If at any time the mother is unable to communicate with the children by Skype or video conferencing then the mother shall be permitted to have telephone communication with the children pursuant to order (8) above.

10.

The father is restrained by injunction from allowing the children to come into contact with the father’s children not of the relationship in circumstances where they are intoxicated or otherwise under the influence of illicit substances and he shall cause the children to be removed from their presence in such circumstances.

11.

The mother is prohibited by injunction from allowing the children to come into contact with Mr A in circumstances where he is intoxicated or otherwise under the influence of illicit substances or in an aggravated state and shall cause the children to be removed from his presence.

12.

Each party is restrained by injunction from making critical or derogratory remarks in relation to the other parent in the presence or hearing of the children and that each parent use their best endeavours to prevent any third party from making critical comments about the other parent in the presence or hearing of the children.

13.

The father shall continue to engage with Brighter Futures (omitted) (or such other similar program) in the locality in which he resides and shall follow any directions and accept any assistance provided to him for as long as the Convenors of the program deem appropriate.

14.

During any period referred to in these orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the children shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

15.

Dismiss the application for costs made by Independent Children’s Lawyer.

16.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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