MERRILL & BOUCHARD - [2015] FamCA 1011

FAMILY COURT OF AUSTRALIA

MERRILL & BOUCHARD

[2015] FamCA 1011

FAMILY LAW – CONTRAVENTION – Parenting – Where final orders were made by consent in 2011 – Where the father brings an application alleging that the mother contravened the final orders – Where the mother currently has an application pending in the proceedings where she seeks to vary the final orders – Where it is found that the mother contravened the final orders without reasonable excuse – Whether the Court should make an order varying the primary parenting order.

Family Law Act 1975 (Cth)

Childers & Leslie (2008) FLC 93-356
Elspeth & Mr H; Mark & Mr H and John & Mr H [2007] FamCA 655

APPLICANT:

Mr Merrill

RESPONDENT:

Ms Bouchard

INDEPENDENT CHILDREN’S LAWYER:

Jane Corcoran

FILE NUMBER:

CRC

281

2008

DATE DELIVERED:

18 November 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

22 September and 12 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J. Priestley of Senior Counsel

SOLICITOR FOR THE APPLICANT:

Sydun & Co Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Carty of Counsel

SOLICITOR FOR THE RESPONDENT:

Michelle Harding Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew of Counsel

(appeared on 12 October 2015 only)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales
(appeared on 12 October 2015 only)

Orders

IT IS DECLARED

That in January 2014, the mother contravened paragraph 5 of the Orders of Federal Magistrate Jarrett (as his Honour then was) of 11 March 2011 without reasonable excuse.
That on 13 October 2014, the mother contravened paragraph 3 of the Orders of Federal Magistrate Jarrett of 11 March 2011, as varied by paragraph 27 of that same Order, without reasonable excuse.
That on 18 October 2014, the mother contravened paragraph 8 of the Orders of Federal Magistrate Jarrett of 11 March 2011 without reasonable excuse.

IT IS ORDERED

That the mother shall pay the father the sum of $2,722 in compensation for expenses incurred by him as a result of her January 2014 contravention of the primary Order.
That paragraphs 1 and 2 of the parenting Order made by his Honour Judge Kemp of the Federal Circuit Court on 14 April 2015 are discharged.
That paragraphs 3, 5, 6–14, 17, 19 and 25–29 of the parenting Order of Federal Magistrate Jarrett of 11 March 2011 are discharged but, for clarity, all other paragraphs of that parenting Order remain in force.

IT IS FURTHER ORDERED, UNTIL FURTHER ORDER

That the child, B born … 2004 (“the child”), shall live with the father from the date of this Order.
That to facilitate the transition of the child to the care of the father as provided for in paragraph 4 hereof, the mother shall deliver the child to the father by delivering her, firstly, to the Independent Children’s Lawyer who shall inform the child of the Court’s determination and of this parenting Order, such process to be undertaken by the Independent Children’s Lawyer, at her discretion,…

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

AGLC: MERRILL & BOUCHARD [2015] FamCA 1011
Case: [2015] FamCA 1011
Decision Date: 18 November 2015

CaseChat Overview and Summary

This matter concerned contraventions of existing parenting orders by the mother, which were brought before Forrest J. The father alleged that the mother had contravened specific paragraphs of orders made by Federal Magistrate Jarrett on 11 March 2011, as varied. The court was required to determine whether these contraventions occurred without reasonable excuse and to make consequential orders regarding the child's living arrangements and communication with both parents.

The court was required to determine whether the mother had contravened paragraphs 5, 3, and 8 of the 11 March 2011 orders without reasonable excuse. In addition, the court had to consider the appropriate orders for the child's future care, including living arrangements, time spent with each parent, communication protocols, and the involvement of professionals such as the Independent Children's Lawyer and a psychologist.

Forrest J found that the mother had contravened the specified paragraphs of the existing orders without reasonable excuse. Consequently, the court ordered the mother to pay the father compensation for expenses incurred due to one of the contraventions. The court then discharged certain paragraphs of previous orders and made new orders that the child shall live with the father. These new orders established a detailed schedule for the child's time with the mother, including specific transition arrangements, communication limitations, and ongoing therapeutic interventions. The Independent Children's Lawyer was directed to facilitate the child's transition to the father's care and to continue monitoring compliance with the new parenting orders.

Orders

Orders of the court

IT IS DECLARED

That in January 2014, the mother contravened paragraph 5 of the Orders of Federal Magistrate Jarrett (as his Honour then was) of 11 March 2011 without reasonable excuse.

That on 13 October 2014, the mother contravened paragraph 3 of the Orders of Federal Magistrate Jarrett of 11 March 2011, as varied by paragraph 27 of that same Order, without reasonable excuse.

That on 18 October 2014, the mother contravened paragraph 8 of the Orders of Federal Magistrate Jarrett of 11 March 2011 without reasonable excuse.

IT IS ORDERED

That the mother shall pay the father the sum of $2,722 in compensation for expenses incurred by him as a result of her January 2014 contravention of the primary Order.

That paragraphs 1 and 2 of the parenting Order made by his Honour Judge Kemp of the Federal Circuit Court on 14 April 2015 are discharged.

That paragraphs 3, 5, 6–14, 17, 19 and 25–29 of the parenting Order of Federal Magistrate Jarrett of 11 March 2011 are discharged but, for clarity, all other paragraphs of that parenting Order remain in force.

IT IS FURTHER ORDERED, UNTIL FURTHER ORDER

That the child, B born … 2004 (“the child”), shall live with the father from the date of this Order.

That to facilitate the transition of the child to the care of the father as provided for in paragraph 4 hereof, the mother shall deliver the child to the father by delivering her, firstly, to the Independent Children’s Lawyer who shall inform the child of the Court’s determination and of this parenting Order, such process to be undertaken by the Independent Children’s Lawyer, at her discretion, in conjunction with Mr C, the psychologist who has been working with the family and who gave evidence in the proceedings, and the Independent Children’s Lawyer shall then facilitate the transition of the child into the father’s care.

That for a period of two weeks from the date of this Order, the child shall not communicate with the mother.

That until the conclusion of the current school year, the child shall not spend any time with the mother and the mother shall not approach the child, encourage the child to approach her, attempt to speak with the child or communicate with the child in any way whilst the child is going into school, is at school, or is leaving the school grounds.

That after the commencement of the 2015 – 2016 Summer school holidays the child shall spend time with the mother from 4:00 pm each Tuesday until 4:00 pm each Wednesday until school resumes in 2016 and at any other time that might be agreed between the father, the Independent Children's Lawyer and the mother.

That after the commencement of school in 2016, the child shall spend time with the mother from:

(a) after school on Friday until school starts on the following Monday, every second weekend during school term, commencing after school on the second Friday of term with the mother to collect the child from school on the Friday afternoon and to return her to school on the Monday morning; and

(b) at any other time that might be agreed between the father, the Independent Children's Lawyer and the mother;

and the mother shall not otherwise approach the child at her school without the prior agreement of the father, the Independent Children's Lawyer and the child’s school Principal.

10.

That from the commencement of the school holidays at the end of first term in 2016 the child shall also spend time with the mother during each school holiday period from after school on the last day of term until 4:00 pm on the day on which the mid-point of the school holidays falls (the holidays being deemed to commence at midnight at the end of the last day of school for the child and to conclude at midnight at the beginning of the first day of school for the child) and if the mid-point of the school holidays falls at midnight on any particular day then transition of the child between the parents is to be at 4:00 pm prior to that midnight mid-point and not the day after.

11.

That commencing on Thursday, 3 December 2015, the child shall communicate with the mother by telephone each Thursday and Sunday night that she is not in the mother’s care by a telephone call made to the mother’s mobile telephone number by the child, facilitated and encouraged by the father, at 6:30 pm with such call to be up to a maximum of 20 minutes in duration, at the discretion of the mother and the child, and with the father to give the child privacy for the duration of such calls.

12.

That the Independent Children’s Lawyer, in conjunction with Mr C, continue to monitor compliance with this parenting Order, including, in particular, by Mr C continuing to see the child and the father, separately and together, for family therapy sessions at such intervals as Mr C and the Independent Children’s Lawyer direct with any cost of such sessions not met by Medicare to be met by the father, with the father to attend such appointments and ensure the child attends such appointments as directed by the Independent Children's Lawyer and Mr C.

13.

That from the time that the child commences to spend time with the mother again pursuant to this parenting Order, the mother may again be involved in the family therapy conducted by Mr C as determined by the Independent Children’s Lawyer and Mr C and she shall attend such appointments as she may be directed by the Independent Children’s Lawyer and Mr C with any cost of such sessions involving the mother alone not met by Medicare to be met by the mother and any cost of such sessions involving the child and the mother not met by Medicare to be met equally by the father and the mother.

14.

That other than as provided for herein, all transitions of the child from the care of one parent to the care of the other parent that do not take place at the child’s school shall take place at the D Credit Union.

15.

That the mother shall provide the father with an email address to which he can send her emails, and thereafter, at least once every week, the father shall send the mother an email in which he informs her of matters pertaining to the wellbeing of the child in that week, including matters relating to her health, education, extra-curricular activities, social life, places she has visited, people she has spent time with and such things.

16.

That the Independent Children's Lawyer shall have liberty to apply to the Court to have the matter listed before his Honour Justice Forrest on an urgent basis for the consideration of the making of any further Orders that she might consider necessary from time to time.

17.

That pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), the Independent Children's Lawyer shall cause a copy of this parenting Order to be provided to the Principal of the E School F Town.

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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