Mott and Donald - [2014] FCCA 2210

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOTT & DONALD

[2014] FCCA 2210

Catchwords:
FAMILY LAW –Parental conflict of long-standing – Father with bi-polar and depressive conditions – Father in senior management position in mental health unit – issues of violence during the relationship and occasionally post separation – Mother extremely anxious person concerned about Father’s judgment regarding child’s welfare – Mother teacher at child’s school – Mother has involved the police regarding bruising of the child occasioned by a game – best interest considerations which include the parents avoiding contact with each other – child has good and close relationship with both parents.

Legislation:

Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA(1) & (5)

Collu & Rinaldo [2010] FamCAFC 53
McCall v Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Mulvany v Lane (2009) 41 Fam LR 418
MRR v GR (2010) 240 CLR 461
SCVG & KLD [2014] FamCAFC 42
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439

Diagnostic and Statistical Manual of Mental Disorders (DSM – 5) (Washington DC: American Psychiatric Publishing, 2013)

Applicant:

MR MOTT

Respondent:

MS DONALD

File Number:

CAC 644 of 2012

Judgment of:

Judge Neville

Hearing dates:

30 & 31 October 2013; 26 March 2014

Date of Last Submission:

23 April 2014

Delivered at:

Canberra

Delivered on:

26 September 2014

REPRESENTATION

Solicitor/Advocate for the Applicant:

Ms J Lloyd

Solicitors for the Applicant:

Jeanine Lloyd & Associates

Counsel for the Respondent:

M J Lawton

Solicitors for the Respondent:

Infinity Legal

Solicitor/Advocate for the Independent Children's Lawyer:

Mrs C Naidu

Solicitors for the Independent Children's Lawyer:

Claire Naidu & Co

ORDERS

The parents have equal shared parental responsibility for the child, X (born on (omitted) 2007) (“the child”);
Subject to the following orders, commencing in the first week of September 2015, the child shall spend week about time with his Mother and Father during school terms, with changeovers to occur after school on Friday and at 5:00pm from the other person’s home on non-school days;
Between the date of these orders and the commencement of the week-about arrangement set out in order 2, the child’s time with the Father will increase from the current four nights per fortnight by one (1) overnight on each of the following dates: 1st December 2014, 1st March 2015, and 1st June 2015. That increase in time is conditional upon the Father providing a report to the Mother and to the head of the family consultants at the Court from his treating psychiatrist which confirms that he has no mental health issues of any note that would affect his parenting of X;
Upon the commencement of the shared care arrangement in September 2015, the Father is to continue to undertake a psychiatric assessment three times per year and after each such review to provide 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 Mott and Donald

Details

AGLC: Mott and Donald [2014] FCCA 2210
Case: [2014] FCCA 2210
Decision Date: 26 September 2014

CaseChat Overview and Summary

The case of *Mott and Donald* concerned parenting orders for a child, X, born in 2007. The dispute involved the mother and father of the child, and the matter was heard by Judge Neville. The court was tasked with determining the arrangements for X's time with each parent, including during school terms, school holidays, and special occasions, as well as addressing ongoing communication and co-operation between the parents.

The court was required to establish a framework for shared parental responsibility and to set out specific time arrangements for the child with each parent. This included determining the frequency and nature of changeovers, provisions for school holidays, and arrangements for birthdays and other significant dates. Furthermore, the court needed to address the father's mental health and its implications for parenting, mandating ongoing psychiatric assessments and reporting. The orders also encompassed provisions for the child's education, communication between parents, and dispute resolution mechanisms.

In its reasoning, the court ordered equal shared parental responsibility for the child. It established a week-about time arrangement during school terms, with specific changeover protocols. Crucially, the father's increased time with the child was conditional on psychiatric reports confirming his fitness to parent, and a regime of ongoing assessments was mandated until the child turned 12. The court also detailed arrangements for school holidays, birthdays, and other special days, including alternating Easter breaks. To foster better co-parenting, the parties were ordered to attend post-separation parenting courses and mediation regularly, and to use a communication book. They were also restrained from speaking negatively about each other to the child and from discussing court proceedings in the child's presence. The court also made orders regarding the child's schooling and contact arrangements, including telephone calls and notification of significant matters concerning the child.

Orders

Orders of the court

The parents have equal shared parental responsibility for the child, X (born on (omitted) 2007) (“the child”);

Subject to the following orders, commencing in the first week of September 2015, the child shall spend week about time with his Mother and Father during school terms, with changeovers to occur after school on Friday and at 5:00pm from the other person’s home on non-school days;

Between the date of these orders and the commencement of the week-about arrangement set out in order 2, the child’s time with the Father will increase from the current four nights per fortnight by one (1) overnight on each of the following dates: 1st December 2014, 1st March 2015, and 1st June 2015. That increase in time is conditional upon the Father providing a report to the Mother and to the head of the family consultants at the Court from his treating psychiatrist which confirms that he has no mental health issues of any note that would affect his parenting of X;

Upon the commencement of the shared care arrangement in September 2015, the Father is to continue to undertake a psychiatric assessment three times per year and after each such review to provide the Mother and the head of the family consultants at the Court with a copy of that assessment. This regime of assessment is to continue until X is 12 years of age, and thereafter, such review (and provision of a report as per order 3 of these orders) shall be twice per year;

The child spend half of each school holiday period with his Father and half with his Mother, failing agreement being the first half of school holidays in odd numbered years with his Mother, and the second half of holidays in even numbered years with his Father.

For the purposes of order 5 above, the duration of school holidays is calculated from after school on the last day of term to before school on the first day of school.

Notwithstanding any other order above:

(a) The child shall spend time with his Father from 9:00am – 5:00pm on Father’s Day and from 9:00am – 5:00pm on Mother’s Day with his Mother.

(b) The child shall spend time with the parent who is not normally residing with for 2 hours on his birthday from after school to 5:00pm or for 4 hours from 3:00pm to 7:00pm on a non-school day.

(c) The Easter break will be alternated between the parents with the Mother having the child in even years and the Father in odd years.

(d) If the child is not normally with the Mother on her birthday, the Mother shall spend time with the child on her birthday for 2 hours on a school day from 3:00pm to 6:00pm and from 3:00pm to 7:00pm on a non-school day.

(e) If the child is not normally with the Father on his birthday the Father shall spend time with the child on his birthday for 2 hours on a school day from 3:00pm to 6:00pm and from 3:00pm to 7:00pm on a non-school day.

(f) The child shall be permitted to telephone the other (non-resident) parent at all reasonable times and each parent shall facilitate these calls.

(g) Absent any other agreement in writing, each parent shall be permitted to telephone the child not more than three (3) times each week (Monday, Wednesday & Friday at 7pm) when X is in the care of the other parent.

Absent any other agreement in writing between the parties, (a) as from the commencement of the school year in 2015, X shall attend (omitted) Primary School in (omitted), (b) neither party shall otherwise change the child’s school without written agreement of the other party (and any school chosen by the parents for X to attend shall not be a school at which the Mother teaches);

Absent any written agreement in writing between the parties, and otherwise in compliance with these orders in relation to any changeover, the parents are hereby restrained from attending the residence of the other parent, or the residence of any partner of the other parent;

10.

The parties shall enrol in, and attend, post separation parenting courses and/or counselling to enhance their communication and co-operation capacities with one another. Evidence of such attendance shall be placed on the Court file;

11.

Absent agreement in writing between them, the parties shall attend mediation no less than once every two months to discuss, to update, and to make decisions in relation to parenting matters concerning X;

12.

The parties shall keep each other advised of up to date contact numbers and addresses;

13.

Both parties are restrained from saying unkind, unpleasant or derogatory things about the other to the child, in his presence or hearing, or allowing any other person to do so;

14.

Each party shall authorise the school or any professional treating the child to inform the other of all relevant matters and provide the school and all treating professionals with the contact details of the other parent;

15.

Each party will notify the other of any illness, injury or significant matter affecting the child as soon as practicable;

16.

The parties shall use a communication book (or email service) which shall record all relevant information about the child’s health or activities schedule, education or wellbeing and shall ensure this communication is polite, business-like and respectful;

17.

Each party shall ensure that the child attends his agreed extracurricular activities and if there is a dispute they shall attend further mediation (in addition to the mediation required by Order 11 of these Orders) to address this issue;

18.

If there continues to be a dispute concerning which activity the child shall attend then the activity shall be chosen on a one for one basis, i.e. the parent who last elected for the child to attend an activity must wait his or her turn and the other parent has the right to choose the activity in dispute;

19.

Both parties are restrained from discussing these Court proceedings, or any other dispute he or she is having with the other parent, with or in the presence or hearing of the child, or allowing any other person to do so;

20.

Nothing in these orders shall prevent the parties making other arrangements from time to time that are agreed in writing;

21.

The independent children’s lawyer be discharged.

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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