Miranda & Cales

Case [2021] FamCA 178

FAMILY COURT OF AUSTRALIA

Miranda & Cales [2021] FamCA 178

File number(s): SYC 8016 of 2019
Judgment of: ALTOBELLI J
Date of judgment: 17 March 2021
Catchwords: FAMILY LAW – PARENTING – Interim parenting – Mental health – Where single joint expert report available –Risk assessment conducted – Concerns that evidence presented in the mother’s case is selective – Impression formed that children at risk of harm under the mother’s care – Interim orders made for the children to live with the father and spend supervised time with the mother.
Legislation: Family Law Act 1975 (Cth) ss 60AA, 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:

Goode & Goode [2006] FamCA 1346

Jopson & Lilwall (No. 2) [2016] FamCAFC 262

MRR v GR [2010] HCA 4

Number of paragraphs: 99
Date of last submission/s: 9 March 2021
Date of hearing: 9 March 2021
Place: Sydney
Counsel for the Applicant: Mr Lethbridge SC
Solicitor for the Applicant: Doolan Wagner Family Lawyers
Counsel for the Respondent: Ms Christie SC
Solicitor for the Respondent: Edwards Family Lawyers
Advocate for the Independent Children's Lawyer: Ms Neligan
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 8016 of 2019
BETWEEN:

MS MIRANDA

Applicant
AND:

MR CALES

Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

17 MARCH 2021

THE COURT ORDERS THAT:

1.Pending further order, orders 1, 2, 3, and 4 of the orders dated 31 March 2020 be suspended.

2.The mother be at liberty to spend supervised time with the children as follows:

    1. During the school term:

i.From after school/day care (approximately 2.30 pm) until 6.30 pm each Wednesday; and

ii.From 9.00 am to 4.30 pm each Saturday or Sunday, with the mother to notify the father via Our Family Wizard which day she chooses to nominate for the forthcoming calendar month, by no later than the 29th of each calendar month.

    1. During the school holidays:

i.From 9.00 am to 4.30 pm each Wednesday; and

ii.From 9.00 am to 4.30 pm each Saturday or Sunday, with the mother to notify the Father via Our Family Wizard which day she chooses to nominate for the forthcoming calendar month, by no later than the 29th of each calendar month.

    1. Any additional time that is agreed to in writing between the parents on Our Family Wizard.

3.The children live with the father at all other times.

4.The mother be at liberty to attend the children’s extra-curricular activities, namely playgroup on Thursday afternoons and gymnastics on Friday afternoons.

Supervision

5.Pending further order, during all times that the children are in the care of the mother, the mother be supervised by:

    1. The mother’s parents, Mr Miranda or Ms B Miranda, or any member of her biological family; or
    2. The father’s parents, Ms Cales or Mr C Cales; or
    3. Ms D; or
    4. Any other supervisor that is agreed to in writing between the parents on Our Family Wizard.

6.Prior to any visit occurring between the mother and the children per order 2 above, the supervisor/s pursuant…

Continue reading Miranda & Cales

Sign in free to access the full text

Details
AGLC
Miranda & Cales [2021] FamCA 178
Case
[2021] FamCA 178
Decision Date

CaseChat Overview and Summary

In the matter of SYC 8016 of 2019, Ms Miranda (the applicant mother) and Mr Cales (the respondent father) were before the court concerning parenting arrangements for their children. The court was required to determine interim parenting orders, particularly in light of concerns raised about the mother's mental health and the potential risk to the children under her care. A single joint expert report had been provided, and the court considered evidence presented by the mother, noting that it appeared selective.

The central legal issue before Altobelli J was the appropriate interim parenting arrangements to ensure the safety and welfare of the children, given the concerns about the mother's mental health and the perceived risk of harm. This involved assessing the evidence presented, including the expert report, and forming an impression of the children's risk under the mother's care. The court needed to balance the mother's right to spend time with her children against the paramount consideration of the children's best interests and protection from harm.

Altobelli J formed an impression that the children were at risk of harm if they remained in the mother's sole care. Consequently, the court made interim orders that the children were to live with the father at all times, except for supervised time with the mother. These supervised visits were detailed, specifying days, times, and the requirement for specific supervisors to provide undertakings to the court. The mother was also restrained from driving the children and was prohibited from operating a motor vehicle in which the children were passengers. The court also granted expedition for the matter to be heard at the earliest convenience.

Orders

Orders of the court

SYC 8016 of 2019

BETWEEN:

MS MIRANDA

Applicant

AND:

MR CALES

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

17 MARCH 2021

THE COURT ORDERS THAT:

1. Pending further order, orders 1, 2, 3, and 4 of the orders dated 31 March 2020 be suspended.

2. The mother be at liberty to spend supervised time with the children as follows:

1. During the school term:

i. From after school/day care (approximately 2.30 pm) until 6.30 pm each Wednesday; and

ii. From 9.00 am to 4.30 pm each Saturday or Sunday, with the mother to notify the father via Our Family Wizard which day she chooses to nominate for the forthcoming calendar month, by no later than the 29th of each calendar month.

1. During the school holidays:

i. From 9.00 am to 4.30 pm each Wednesday; and

ii. From 9.00 am to 4.30 pm each Saturday or Sunday, with the mother to notify the Father via Our Family Wizard which day she chooses to nominate for the forthcoming calendar month, by no later than the 29th of each calendar month.

1. Any additional time that is agreed to in writing between the parents on Our Family Wizard.

3. The children live with the father at all other times.

4. The mother be at liberty to attend the children’s extra-curricular activities, namely playgroup on Thursday afternoons and gymnastics on Friday afternoons.

Supervision

5. Pending further order, during all times that the children are in the care of the mother, the mother be supervised by:

1. The mother’s parents, Mr Miranda or Ms B Miranda, or any member of her biological family; or

2. The father’s parents, Ms Cales or Mr C Cales; or

3. Ms D; or

4. Any other supervisor that is agreed to in writing between the parents on Our Family Wizard.

6. Prior to any visit occurring between the mother and the children per order 2 above, the supervisor/s pursuant to order 5 above file an Undertaking with the Court confirming that:

1. They will supervise the children at all times, and remain within remain within visual and audible distance, during the time that the children spend with their mother;

2. In the event they are unable to supervise the children, they will immediately contact the father;

3. If there is any issue as to the safety or welfare of the children during any supervised visit, or in the event that the mother suffers a health episode, they will immediately contact the father by telephone;

4. They each will not denigrate or insult either parent and or their family in the presence or hearing of the children, and will use their best endeavours to ensure that others do not denigrate or insult either parent in the hearing or presence of the children;

5. They will ensure that the mother does not drive the children while the mother is spending supervised time with the children; and

6. They agree to be bound by the Undertaking until excused by the Court.

Changeover

7. Unless otherwise agreed in writing between the parents on Our Family Wizard, all changeovers shall occur by either:

1. The father delivering the children to the driveway of the mother’s residence at the commencement of time, and collecting the children from the driveway of the mother’s residence at the conclusion of the children’s time with the mother; or

2. The supervisor collecting the children from school/day care at the commencement of the mother’s time, and delivering the children to the father’s residence at the conclusion of the children’s time with the mother; and

3. The mother is to notify the father via Our Family Wizard no less than seven (7) days prior to any visit whether she nominates changeover occur pursuant to order 7(a) or (b).

8. Pending further order, the Mother be restrained from operating a motor vehicle in which the children are a passenger.

9. Leave be granted to the parties to file consent orders in Chambers.

10. This matter be granted expedition and placed into my docket for allocation of a hearing date at the earliest convenience.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.