Mullen and Acken - [2011] FamCA 359

FAMILY COURT OF AUSTRALIA

MULLEN & ACKEN

[2011] FamCA 359

FAMILY LAW – CHILDREN – Transfer of proceedings from the Federal Magistrates Court – Matter set down for first day hearing – Mother to have telephone communication with the children.

APPLICANT:

Ms Mullen

RESPONDENT:

Mr Acken

INDEPENDENT CHILDREN’S LAWYER:

Mr D Piekarski

FILE NUMBER:

MLC

10068

2010

DATE DELIVERED:

5 May 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr T Mulvany

SOLICITOR FOR THE RESPONDENT:

T.J. Mulvany & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1.This matter be accepted into my docket and be set down for hearing before me as a first day matter on Friday 1 July 2011 at 10.00 am, estimated to take not less than 2-3 hours.
2.Until further order, each party is at liberty to cause subpoena to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrar Sikiotis or, in her absence, notified to them by my Associate for the return of subpoenae.
3.I grant leave to the independent children’s lawyer to make an oral application for a variation of parenting orders to enable the mother to have such telephone communication with the children as the father is agreeable to and is supported by the independent children’s lawyer.
4.Until further order, the mother be entitled to communicate with the children S born … September 1998, E born … March 2000 and T born … December 2001 by telephone each Wednesday and Sunday between the hours of 6.30 pm and 7.30 pm at which time the mother place a call to the children’s residence and the father do all acts and things necessary to ensure that the telephone line is kept free from all other calls and the children are in the house and available to receive the mother’s call.
5.For the purpose of facilitating the telephone communication the father afford the children as much privacy as is possible when speaking to the mother.
6.Both parties be at liberty to record the calls in their entirety. In the event that the calls are taped the tapes be preserved and not deleted or disposed of until further of the Court and any recording is to be unbeknownst to the children.
7.In anticipation of the listing on 1 July 2011:-
a) no party be entitled without prior leave of the Court to file any further documents in the proceedings;
b) AND IT IS REQUESTED that the Director of Child Dispute Services for this Registry of the Court advise of the availability of a family consultant to conduct a Child and Parent Issues Assessment or other involvement in relation to this matter with a view to the future management of this matter.
8.The reasons for judgment this day be transcribed and when…

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

Case: [2011] FamCA 359
Decision Date: 5 May 2011

CaseChat Overview and Summary

This matter came before Bennett J in the Family Court of Australia. The proceedings involved a dispute between the mother and father concerning parenting orders for their three children. The mother had indicated she would not avail herself of supervised time with the children pending further notice.

The court was required to determine whether to grant leave for an oral application to vary existing parenting orders, specifically to allow the mother telephone communication with the children. The court also needed to consider the terms and conditions under which such communication should occur, including the father's obligations to facilitate the calls and the privacy of the conversations.

Bennett J reasoned that it was in the children's best interests to allow supervised telephone contact between the mother and children. The court applied principles relating to the welfare of children and the importance of maintaining familial relationships where appropriate. The court made detailed orders regarding the timing and method of telephone communication, including provisions for privacy, recording of calls, and the father's responsibility to ensure the children were available. The court also directed that the reasons for judgment be transcribed and attached a fact sheet outlining the obligations and consequences of contravening the orders.

Orders

Orders of the court

IT IS ORDERED THAT:

1. This matter be accepted into my docket and be set down for hearing before me as a first day matter on Friday 1 July 2011 at 10.00 am, estimated to take not less than 2-3 hours.

2. Until further order, each party is at liberty to cause subpoena to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrar Sikiotis or, in her absence, notified to them by my Associate for the return of subpoenae.

3. I grant leave to the independent children’s lawyer to make an oral application for a variation of parenting orders to enable the mother to have such telephone communication with the children as the father is agreeable to and is supported by the independent children’s lawyer.

4. Until further order, the mother be entitled to communicate with the children S born … September 1998, E born … March 2000 and T born … December 2001 by telephone each Wednesday and Sunday between the hours of 6.30 pm and 7.30 pm at which time the mother place a call to the children’s residence and the father do all acts and things necessary to ensure that the telephone line is kept free from all other calls and the children are in the house and available to receive the mother’s call.

5. For the purpose of facilitating the telephone communication the father afford the children as much privacy as is possible when speaking to the mother.

6. Both parties be at liberty to record the calls in their entirety. In the event that the calls are taped the tapes be preserved and not deleted or disposed of until further of the Court and any recording is to be unbeknownst to the children.

7. In anticipation of the listing on 1 July 2011:-

a) no party be entitled without prior leave of the Court to file any further documents in the proceedings;

b) AND IT IS REQUESTED that the Director of Child Dispute Services for this Registry of the Court advise of the availability of a family consultant to conduct a Child and Parent Issues Assessment or other involvement in relation to this matter with a view to the future management of this matter.

8. The reasons for judgment this day be transcribed and when settled copies be made available to the parties.

9. Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

AND IT IS NOTED BY THE COURT that the wife has advised the Court and the other parties to the proceedings that pending further written notice by her to them to the contrary, she will not avail herself of the time with the children provided for in paragraph 2 of the Order made by Federal Magistrate Connolly on 5 May 2011 (for supervised time spent).

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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