McGlennan and Don (No 2) - [2010] FamCA 443

FAMILY COURT OF AUSTRALIA

MCGLENNAN & DON (NO. 2)

[2010] FamCA 443

FAMILY LAW – CHILDREN – with whom a child lives – where the child is severely autistic – where the child has lived with the father – where the child is progressing in the father’s care – where there is a history of violence – where the father has abused alcohol in the past – where the child’s siblings reside with the mother – where the father has obstructed previous attempts for the mother to spend time with the child – consideration of the child’s autism and his inability to adapt to change – where a change in circumstances poses a significant risk to the child outweighing the other relevant factors – orders made that the child live with the father

FAMILY LAW – CHILDREN – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where the parties have a highly toxic relationship – where the parties are unable to communicate effectively – where it is not in the best interests of the child for the parties to have equal shared parental responsibility – father to have sole parental responsibility

FAMILY LAW – CHILDREN – with whom a child spends time – best interests – orders that the mother to spend time with the child on a weekly basis and that she adhere to the child’s established routine

Family Law Act 1975 (Cth) ss 60CA, 60CC & 61DA

G & C [2006] FamCA 994
Mazorski & Albright [2007] FamCA 520
Blair & Blair [2007] FamCA 253
McCall & Clark [2009] FamCAFC 92

APPLICANT:

Mr McGlennan

RESPONDENT:

Ms Don

INDEPENDENT CHILDREN’S LAWYER:

Northern Territory Legal Aid Commission

FILE NUMBER:

DNC

148

2009

DATE DELIVERED:

3 June 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

BURR J

HEARING DATE:

29, 30 September 2009, 1, 2 October 2009, 2, 3 & 6 November 2009, 8, 9, 10, 11, 12, 15, 16 February 2010, 17 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS MUDIE (to 10 February 2010)

SOLICITOR FOR THE APPLICANT:

WITHNALLS (to 10 February 2010)

FATHER IN PERSON (from 10 February 2010)

COUNSEL FOR THE RESPONDENT:	Ms McLAREN
SOLICITOR FOR THE RESPONDENT:	ASHA McLAREN

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MS ELLIOTT
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	NORTHERN TERRITORY LEGAL AID COMMISSION

Orders

That all previous current parenting orders in relation to the child M (“the child”) born … September 2000 are discharged.
That the child live with the father who shall have sole parental responsibility for him.
That save and except as otherwise agreed between the parties, the mother spend time with the child each Saturday from 10.00 am until 5.00 pm UPON NOTING that:-
(a)such time shall include a visit to the C swimming pool;
(b)such time shall include time spent at the mother’s residence;
(c)the mother will arrange lunch for the child which includes Red Rooster chips.
That all handovers at the commencement and conclusion…

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 McGlennan and Don (No 2)

Details

AGLC: McGlennan and Don (No 2) [2010] FamCA 443
Case: [2010] FamCA 443
Decision Date: 3 June 2010

CaseChat Overview and Summary

In the matter of *McGlennan and Don (No 2)*, Burr J of the Family Court of Australia considered parenting orders concerning a severely autistic child, M. The dispute centred on with whom M should live and the extent of parental responsibility, given M's established progress in his father's care, a history of domestic violence and alcohol abuse by the father, and the mother's care of M's siblings. The father had previously obstructed the mother's time with M, and M's autism meant he struggled with change, posing a significant risk if his current circumstances were altered.

The court was required to determine whether the presumption of equal shared parental responsibility under s 61DA of the *Family Law Act 1975* (Cth) had been rebutted, and consequently, with whom M should live and spend time, always considering M's best interests. The court also had to assess the impact of the parties' highly toxic and uncommunicative relationship on M's welfare.

Burr J found that the presumption of equal shared parental responsibility was rebutted due to the parties' inability to communicate effectively and the detrimental impact this would have on M. Applying the paramount consideration of M's best interests, and noting the significant risk to M's development and inability to adapt to change if his living arrangements were altered, the court ordered that M live with the father, who was granted sole parental responsibility. The mother was ordered to spend time with M on a weekly basis, adhering to his established routine, with specific provisions for handovers and injunctions to prevent harassment and maintain proximity restrictions between the parents, save for specific exceptions related to M's welfare and medical needs.

Orders

Orders of the court

That all previous current parenting orders in relation to the child M (“the child”) born … September 2000 are discharged.

That the child live with the father who shall have sole parental responsibility for him.

That save and except as otherwise agreed between the parties, the mother spend time with the child each Saturday from 10.00 am until 5.00 pm UPON NOTING that:-

(a) such time shall include a visit to the C swimming pool;

(b) such time shall include time spent at the mother’s residence;

That all handovers at the commencement and conclusion of each period of time that the child spends with the mother shall be conducted at the premises of Catholic Care SAVE AND EXCEPT that in the event that Catholic Care are not prepared to make their facilities available to the parties, then handovers are to be conducted at the main entrance of the S Shopping Centre.

That the parties do all such things, sign all such documents, attend all such interviews and pay all such fees as may be necessary to access the handover facilities of Catholic Care in the event that Catholic Care are prepared to make their facilities available to the parties.

That both parties and any other person(s) on their behalf or instructed by them are restrained and an injunction is hereby granted restraining each of the parties or such other person(s) from:-

(a) assaulting, molesting, harassing, intimidating or abusing the other party;

(b) remaining within the vicinity of the other party, save and except for the brief period of each handover to be conducted pursuant to paragraph 4 of these Orders;

(c) following or engaging with or contacting the other party, save and except for the brief period of each handover to be conducted pursuant to paragraph 4 of these Orders;

(d) attending at or remaining within a 1 kilometre radius of the residential premises occupied by the other party

SAVE AND EXCEPT:-

(i) in the event of an emergency that impacts upon the child and in which event the person with the care of the child at that time is to telephone the other parent to advise of the manner of the emergency and the action that has been taken;

(ii) at meetings promoted and organised by the child’s school;

(iii) at attendances upon Dr B or any of the child’s other treating medical practitioners.

That the parties are restrained and an injunction is hereby granted restraining each of them from relocating the place of residence of the children Q (“Q”) born … October 1994, L (“L”) born … February 1996 and M from the greater Darwin area.

That the parties attend all meetings organized by M’s school convened to promote his education, welfare and development and do use all reasonable endeavours to abide the school’s directions and programmes proffered by the school including any suggestion or proposal for M to spend more or different time with the mother, Q or L when the school is of the view that such changes are beneficial for M and could be accommodated by him.

That the following persons or organisations be at liberty to secure from the Independent Children’s Lawyer or this Court a copy of these Reasons for Judgment for their information only UPON CONDITION that the same are not to be published or used for any other purpose or in any other proceedings before any other Court or tribunal without leave of this Court, namely:-

(a) K Primary School;

(b) Dr B;

(d) Mr V.

10.

That the appointment of the Independent Children’s Lawyer be discharged.

11.

That all applications be removed from the pending list.

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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