MEYER & DARA - [2020] FamCA 1043

FAMILY COURT OF AUSTRALIA

MEYER & DARA

[2020] FamCA 1043

FAMILY LAW – CHILDREN – Application by biological father seeking parenting orders in relation to the child – mother opposes the father’s application – Independent Children’s lawyer supports the father’s application – parties met online on a co-parenting website – child conceived via artificial conception – where the parties have never been in a romantic relationship – where the mother asserts there was no agreement between herself and the father as to co-parenting – where the father asserts an agreement as to co-parenting prior to pregnancy – where the child had a relationship with the father for approximately 8 months – where the child has no relationship with the father and has not spent time with the father for five years – where the mother opposes any time spent with between the child and the father – consideration of best interests of the child – rebuttal of presumption under s 61DA of the Family Law Act 1975 (Cth) – where it is not in the best interests of the child for the parents to have equal shared parental responsibility – mother to have sole parental responsibility – where the father is a parent of the child – where it is in the best interests of the child for the child to spend time with the father – supervised time – therapeutic intervention – airport watch list order – mother’s application unsuccessful – not supported by law or evidence – application of each of the Independent Children’s Lawyer and father successful albeit time spent with to progress more slowly than father’s application sought.

Family Law Act 1975 (Cth) ss 11F, 60B, 60CA, 60CC, 60H, 61DA, 68L, 69R

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Bell & Nahos [2016] FamCAFC 244
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638
Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55
Masson & Parsons (2017) 58 Fam LR 1
Masson v Parsons (2019) FLC 93-904
R v Gee (2003) 212 CLR 230
Re Mark [2003] FamCA 822
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPLICANT:

Mr Meyer

RESPONDENT:

Ms Dara

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

1118

2016

DATE DELIVERED:

11 December 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

22-24 July 2020
2 September 2020

WRITTEN SUBMISSIONS:

4 September 2020
10 September 2020
24 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC (by video link)

SOLICITOR FOR THE APPLICANT:

Meredith Hatton & Associates

COUNSEL FOR THE RESPONDENT:

Ms Gillies SC (by video link)

SOLICITOR FOR THE RESPONDENT:

Dimocks Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner (by video link)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All previous orders be discharged.
The Respondent mother (‘the mother’) have sole parental responsibility for the child X born … 2015 (‘the child’). In exercising that sole parental responsibility the mother…

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 MEYER & DARA

Details

AGLC: MEYER & DARA [2020] FamCA 1043
Case: [2020] FamCA 1043
Decision Date: 11 December 2020

CaseChat Overview and Summary

In the Family Court of Australia, Justice Hartnett considered an application by the biological father for parenting orders concerning his child, opposed by the mother. The parties met online via a co-parenting website, and the child was conceived through artificial insemination. They had never been in a romantic relationship. The father asserted an agreement for co-parenting existed prior to the pregnancy, while the mother denied this, claiming no such agreement was made. The child had an eight-month relationship with the father, but had not spent time with him for five years, and the mother opposed any further contact. The Independent Children’s Lawyer supported the father's application.

The court was required to determine the best interests of the child, specifically whether the presumption of equal shared parental responsibility under section 61DA of the *Family Law Act 1975* (Cth) should be rebutted. The court also had to consider whether it was in the child's best interests to spend time with the father, and if so, the nature and extent of that time, including the necessity for supervised contact and therapeutic intervention.

Justice Hartnett found that it was not in the child's best interests for the parents to have equal shared parental responsibility, and therefore rebutted the presumption. The mother was granted sole parental responsibility, with the child to live with her. However, the court determined that it was in the child's best interests to spend time with the father, albeit commencing with supervised contact and requiring therapeutic intervention. The court outlined a detailed, phased schedule for the child to spend time with the father, gradually increasing the duration and decreasing the level of supervision over time, commencing in March 2021. The father was ordered to bear the costs of supervised contact.

The court made orders for the parties to undertake family therapy, with the mother to inform the father of decisions regarding major long-term issues for the child. Further orders addressed communication, school and medical information, geographical restrictions on the mother's residence, and an airport watch list order to prevent the child's removal from Australia. The parties were also restrained from discussing the proceedings with the child or denigrating each other. The Independent Children’s Lawyer's appointment was to be discharged after 90 days.

Orders

Orders of the court

All previous orders be discharged.

The Respondent mother (‘the mother’) have sole parental responsibility for the child X born … 2015 (‘the child’). In exercising that sole parental responsibility the mother shall inform the Applicant father (‘the father’) promptly by SMS or email of a decision that she has made relating to a major long-term issue for the child including but not limited to:-

(a) education; and

(b) medical issues.

The child live with the mother.

The parties shall both complete an initial session, and one further session (either separately or jointly) of family therapy and complete both sessions as soon as is practicable but by the end of February 2021. The costs of same be paid equally by the parties.

Commencing in the first week in March 2021 the child shall spend time with the father as follows:-

(a) for a period of 2 hours on a Saturday or Sunday, at the father’s election, once a month for a period of 6 months with such time to occur as supervised time at the B Contact Centre at V Town;

(b) commencing 1 September 2021, for a period of 3 months, once a month on a Saturday or Sunday at the father’s election from 10.00am to 2.00pm with changeover to be facilitated by the B Contact Centre. This time spent with shall not be supervised;

(c) commencing 1 December 2021, for a period of 2 months, once a month on a Saturday or Sunday at the father’s election, from 10.00am to 6.00pm, with changeover to be facilitated by the B Contact Centre. This time spent with shall not be supervised;

(d) commencing 1 February 2022, for a period of 2 months, twice a month on a Saturday or Sunday at the father’s election, from 10.00am to 6.00pm with the father to collect and return the child to the mother’s home or to such other location as agreed in writing between the parties;

(e) commencing 1 April 2022, during school terms, for the first weekend of each month from 10.00am Saturday until 5.00pm Sunday, and additionally commencing on 1 May 2022 and in the event the father has obtained accommodation in V Town and has given the mother at least 7 days’ notice in writing, from 3.00pm or afterschool Friday until 5.00pm Sunday, with the father to collect and return the child to the mother’s home or to such other location as agreed in writing between the parties;

(f) commencing in August 2022, during school terms, for any one weekend each month at the father’s election upon 7 days written notice to the mother, from 3.00pm or after school Friday until 6.00pm Sunday with the father to collect the child from school or the mother’s home at commencement of time spent with and the parties to meet at an agreed geographically half-way changeover location at conclusion of time spent with;

(g) commencing in June/July 2022, for the first week of each of the 1st, 2nd, and 3rd term New South Wales school holiday periods commencing at 9.00am on the first Saturday until 1.00pm on the following Saturday. The father to collect the child from the mother’s home at the commencement of such time and the mother to collect the child from the father’s home at the conclusion of such time unless some other changeover locations are agreed in writing between the parties; and

(h) commencing in 2022, for 12 nights during the end of term 4 school holidays as agreed between the parties and failing agreement commencing 9.00am on the second Saturday in January and concluding at 5.00pm on the second Thursday thereafter. The father to collect the child from the mother’s home at the commencement of such time and the mother to collect the child from the father’s home at the conclusion of such time unless some other changeover locations are agreed in writing between the parties.

To facilitate the child’s time with the father at the B Contact Centre, the parties shall:-

(a) contact the B Contact Centre by telephone on … within 7 days and arrange an appointment for assessment for suitability for supervised contact;

(b) attend the assessment;

(d) comply with all reasonable rules of the contact centre; and

(e) comply with all reasonable requests or directions of the staff of the contact centre, including any referrals for parenting programs.

The father solely bear all costs associated with supervision of his time and supervised changeover through the B Contact Centre.

Additional to order 5 herein, the child spend time with the father as follows:-

(a) commencing in 2023, on Easter weekend each year from 4.00pm on Thursday, being the day before Good Friday, until 4.00pm on Easter Monday and any provision for time under these orders that is inconsistent with this sub-paragraph be suspended so as to facilitate time under this sub-paragraph;

(b) commencing in 2022 from 9.00am on 23 December through to 5.00pm on 27 December each year and any provision for time under these orders that is inconsistent with this sub-paragraph be suspended so as to facilitate time under this sub-paragraph;

(c) commencing in 2022 on the child’s birthday from 9.00am to 12 noon and any provision for time under these orders that is inconsistent with this sub-paragraph be suspended so as to facilitate time under this sub-paragraph; and

(d) commencing in 2022 on Father’s Day from 9.00am through to 5.00pm and that any provision for time under these orders that is inconsistent with this sub-paragraph be suspended so as to facilitate time under this sub-paragraph.

In the event that the child is due to spend time with the father on Mother’s Day or a religious holiday which is observed by the mother, then such time will be suspended and the mother will offer the father an equal amount of make-up time with the child on a weekend or during school holidays as close to the suspended time as possible.

10.

For the purpose of order 9 herein, the mother provide the father with a written list of religious holidays and their dates as observed by the mother within 7 days of the date of these orders.

11.

Commencing at the beginning of term 4 in 2021 the father and the child communicate with each other by telephone on Tuesdays and Fridays each week at 6.00pm and at such other times as may be agreed in writing between the parties.

12.

Within 7 days of the date of these orders the parties contact Ms PP of XX Psychology, or if unavailable another therapist as nominated by the Independent Children’s Lawyer, to arrange family therapy for the parties and the child including that provided for in order 4 herein.

13.

The parties participate in family therapy as follows:-

(a) at a frequency agreed between each party and the therapist but not less than once a month;

(b) if requested by the therapist, in a joint session with the child;

(d) if requested by the therapist, the father will ask his partner to attend a therapy session/s with them; and

(e) the parties are to participate in family therapy for a maximum period of 12 months, unless otherwise agreed between the family therapist and the parties.

14.

The parties follow any recommendation made by the therapist to promote and support the relationship between the parties and between each of the parties and the child.

15.

If recommended by the therapist the parties do all things necessary for the child to spend time with the father for a short visit facilitated by the therapist.

16.

The mother and father share equally in the costs of family therapy.

17.

For the purpose of order 13, the parties take all such reasonable steps to enable such therapy to take place at a time which immediately precedes or follows the child’s time with the father pursuant to orders 5 and/or 8.

18.

The therapist engaged by the parties to report to the Court on the progress of the parties should the therapist deem it necessary or appropriate to do so.

19.

The Independent Children’s Lawyer be granted leave to provide a copy of these orders to the therapist.

20.

Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within 7 days of such change occurring.

21.

After the child commences primary school each party is hereby authorised to obtain from the child’s school all notices, letters, school reports and invitations and to attend parent teacher interviews or other activities to which parents are invited. Such interviews and/or other activities may occur at the school or at any other venue or premises as determined by the school and each of the parties is at liberty to attend such interviews and/or other activities as are connected to the school at any venue or premises at which such interviews and/or activities occur.

22.

Within 7 days of the date of these orders the mother provide the father with details of all of the child’s treating health professionals in writing and keep the father informed of any changes to such professionals. The father is permitted to contact any medical providers engaged with the child and is authorised to obtain copies of any medical reports and updates in relation to the child.

23.

Within 7 days of the date of these orders the mother provide the father with details of all of the child’s long day care and/or pre-school and after-school providers in writing and keep the father informed of any changes to such providers.

24.

The parties each advise the other within 24 hours or as soon as reasonably practical, in the event that the child requires any emergency medical treatment and provide details of any such treatment required together with details of the medical professionals providing such treatment. The father is permitted to visit the child if the child is hospitalised.

25.

Unless the parties otherwise agree in writing, the mother is restrained from moving the residence of the child more than a radius of 300 kilometre of M Town in the State of New South Wales prior to 1 January 2024.

26.

The mother, Ms Dara born … 1973, and her servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of X born … 2015 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure by air or sea in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List for a period of three years from the making of this order.

27.

Each of the mother and father meet the total costs of Dr C, the single expert in this proceeding, on an equal basis. Each party shall pay to Dr C one half of all monies outstanding to her within 21 days of a request for same by Dr C. The mother shall reimburse the father as to one half of the sums already expended by him (being 100 percent of the total cost) in respect of the preparation and release of Dr C’s second report.

28.

Each party be and is hereby restrained from:-

(a) discussing these proceedings or any issue or allegation raised therein with the child;

(b) allowing, causing or permitting the child to view any documents filed or to be filed in these proceedings;

(c) denigrating the other parent or allowing, causing or permitting any other person to do so in the presence or hearing of the child; and

(d) denigrating any member of the other parent’s family or household or allowing, causing or permitting any other person to do so in the presence or hearing of the child.

29.

The order made 26 October 2016 appointing the Independent Children’s Lawyer be discharged 90 days after the making of these orders with the parties notifying the Court of an intention to seek costs and the quantum of such costs on or before 10 February 2021.

30.

Any continuing application for costs be adjourned for mention on a date to be fixed.

31.

Otherwise, all extant applications are dismissed.

AND THE COURT NOTES THAT:

A. The child shall be raised in the Religion W faith.

B. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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