Milton and Milton - [2012] FamCA 202

FAMILY COURT OF AUSTRALIA

MILTON & MILTON

[2012] FamCA 202

FAMILY LAW - CHILDREN - Spend time with - Best interests - Where the parties have difficulty cooperating and communicating - Where the children have a poor relationship with the father - Where the children are adolescents

Family Law Act 1975 (Cth)

MRR v GR (2010) 240 CLR 461
Cowley v Mendoza FamCA 597; (2010) 42 Fam LR 436
Goode and Goode (2006) FLC 93-286
Bostoi & Bostoi [2010] FamCA 992

APPLICANT:

Mr Milton

RESPONDENT:

Ms Milton

INDEPENDENT CHILDREN’S LAWYER:

Delaney Lawyers

FILE NUMBER:

SYC

2737

2010

DATE DELIVERED:

4 April 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

28 & 29 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Thomas

SOLICITOR FOR THE APPLICANT:

Clinch Long Letherbarrow Pty Limited

COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT:

McDonnell Milne Toltz Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Delaney Lawyers

Orders

That all existing parenting Orders in relation to the children:
B born on … September 1998; and
C born on … August 1999,
are discharged.
That the children live with the mother.
That the children spend time with the father as follows:
3.1.   from the conclusion of school on Thursday, or such other night as may be agreed, until 8.00pm commencing on 5 April 2012 and each alternate Thursday or other agreed night thereafter;
3.2.   from 9.00am until 5.00pm on 15 April 2012 and each alternate Sunday thereafter;
3.3.   that the time referred to herein shall occur in the absence of Ms A and K for a period of not less than six (6) weeks from 5 April 2012.
That the parties attend therapy with Ms M, clinical psychologist, at … R Street, Suburb N, and ensure that the children and any other persons such as Ms A attend as requested by Ms M.
That the children move to overnight time with the father subject only to the agreement of the parties, noting that they acknowledge that in providing their agreement to any progression of time, they will follow and accept the recommendations of Ms M.
That in the event of a disagreement as to the recommendation of Ms M the parties shall request that she provide a written opinion as to any times extension or progression of time.
That it be noted the parties agree that it is not necessary for Ms M to provide reasons for any recommendation made to the parties and that there shall be no request or subpoena addressed to Ms M in respect of notes or reports other than as set out in Order 6 hereof.
That if during any period when the children are spending time with the father he is unable to be with them for a period exceeding two (2) hours at any one time, then he shall arrange for the children to return to the care of the mother 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 Milton and Milton

Details

AGLC: Milton and Milton [2012] FamCA 202
Case: [2012] FamCA 202
Decision Date: 4 April 2012

CaseChat Overview and Summary

Stevenson J made orders concerning the parenting arrangements for two children, B and C. The dispute concerned the living arrangements and time spent between the children and their parents.

The court was required to determine the specific orders regarding the children's residence, the time they would spend with each parent, and the conditions and processes for any future changes to these arrangements. Further issues included the involvement of a clinical psychologist, arrangements for the children's care when with the father, changeover protocols, communication between parents regarding the children, and the sharing of costs for the Independent Children's Lawyer.

Stevenson J discharged all existing parenting orders and made new orders. The children were to live with the mother, with specific time arrangements for the father, including a period where certain individuals were to be absent. The parties were ordered to attend therapy with a clinical psychologist, whose recommendations regarding the progression of time with the father were to be followed, with a process for obtaining written opinions in case of disagreement. The orders also stipulated strict changeover procedures, communication protocols, and information sharing regarding the children's health and education, including provisions for direct communication with schools and treating practitioners.

The court ordered that each party pay half of the Independent Children's Lawyer's costs.

Orders

Orders of the court

That all existing parenting Orders in relation to the children:

B born on … September 1998; and

C born on … August 1999,

are discharged.

That the children live with the mother.

That the children spend time with the father as follows:

3.1. from the conclusion of school on Thursday, or such other night as may be agreed, until 8.00pm commencing on 5 April 2012 and each alternate Thursday or other agreed night thereafter;

3.2. from 9.00am until 5.00pm on 15 April 2012 and each alternate Sunday thereafter;

3.3. that the time referred to herein shall occur in the absence of Ms A and K for a period of not less than six (6) weeks from 5 April 2012.

That the parties attend therapy with Ms M, clinical psychologist, at … R Street, Suburb N, and ensure that the children and any other persons such as Ms A attend as requested by Ms M.

That the children move to overnight time with the father subject only to the agreement of the parties, noting that they acknowledge that in providing their agreement to any progression of time, they will follow and accept the recommendations of Ms M.

That in the event of a disagreement as to the recommendation of Ms M the parties shall request that she provide a written opinion as to any times extension or progression of time.

That it be noted the parties agree that it is not necessary for Ms M to provide reasons for any recommendation made to the parties and that there shall be no request or subpoena addressed to Ms M in respect of notes or reports other than as set out in Order 6 hereof.

That if during any period when the children are spending time with the father he is unable to be with them for a period exceeding two (2) hours at any one time, then he shall arrange for the children to return to the care of the mother for the period during which he is unavailable, subject to her availability and the children’s wishes.

That for the purpose of implementing these orders, the mother is to deliver the children to the father’s residence at the commencement of time with the father and he is to return them to the mother’s residence at the completion thereof, other than on those occasions when the times commence immediately following school.

10.

That at the time of changeover arrangements pursuant to Order 9, both parties shall remain in their respective vehicles, unless invited by the other party to alight, and shall refrain from communicating with or gesturing to the other, save in civil terms or means and, in particular, both parties shall refrain from discussing issues relevant to changeover arrangements in the presence or hearing of the children.

11.

That either party be at liberty to contact the children by telephone and/or other electronic means at all reasonable times when the children are with the other parent.

12.

That each party keep the other informed in relation to all medical, dental or other health related treatments being undertaken by the children and the identity of the treating professionals.

13.

That both parents shall authorise any treating practitioner and/or medical specialist to provide all information which either of them may reasonably require concerning the welfare of the children.

14.

That each party keep the other informed as to all sporting, religious, cultural and educational events in which the children are involved from time to time.

15.

That each party is at liberty to attend all events at the children’s school to which parents are invited.

16.

That neither party is to denigrate or permit any other person to denigrate the other or members of their extended family within the presence or the hearing of the children.

17.

That each party is to advise the other of any change in their residential address, telephone number and/or other means of electronic communication within twenty-four (24) hours of such a change.

18.

That each party do all acts and things and sign all such documents necessary to ensure that:

18.1. each party is at liberty to communicate directly with the children’s school teachers as to the children’s educational progress;

18.2. each party shall do all things necessary to ensure that the school records show each parent as an emergency contact and to place both on the mailing list for copies of school reports and circulars as to upcoming events; and

18.3. each party is at liberty to communicate with any treating health care professional of the children, without necessarily first referring to the other parent.

19.

That each party pay or cause to be paid one half of the Independent Children’s Lawyer’s costs and disbursements of and incidental to these proceedings (including Counsel’s fees) in accordance with the prevailing scale for Independent Children’s Lawyers, as determined by the Legal Aid Commission of New South Wales.

20.

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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