Neligan and Lassey - [2012] FamCA 257

FAMILY COURT OF AUSTRALIA

NELIGAN & LASSEY

[2012] FamCA 257

FAMILY LAW - CHILDREN – parental responsibility - with whom a child shall live and spend time – with whom a child shall communicate with – injunction - parenting proceedings concerning two children aged six and seven - where the mother has been less than honest and forthright with the Court – where the mother is in a relationship with a person listed on the Child Protection Register – where mother’s partner has an extensive record of criminal convictions – finding the mother’s partner poses an unacceptable risk of harm to the children and mother – mother’s history of commencing relationships with violent partners - where the mother is unable or unwilling to protect herself or the children from exposure to violence and psychological harm – evidence of the children being settled and well cared for in the father’s care - presumption of equal shared parental responsibility rebutted – orders sole parental responsibility allocated to father – orders for children to live with the father – orders for children to have supervised identity contact with mother four times per year and weekly telephone contact – injunction restraining mother’s partner to make contact with children

Family Law Act 1975 (Cth) ss 60CC, 61DA, 68B

APPLICANT:

Mr Neligan

RESPONDENT:

Ms Lassey

FILE NUMBER:

PAC

2010

DATE DELIVERED:

18 April 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

2 & 3 April 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Bale Boshov Lawyers
Mr Brogan

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Mr Squires

Orders

That all prior parenting orders are hereby discharged.
That the father Mr Neligan have sole parental responsibility for the children D born … August 2004 and C born … October 2005 (“the children”).
That the children live with the father.
That the father and the mother keep each other advised in writing (including email and text) of a current contact address and current telephone number.
That the children spend time with the mother on not less than four occasions per year at a Contact Centre and at times agreed between the parents and failing agreement otherwise in April, July, October and January; provided that the time is supervised in a professional Contact Centre with each period to consist of the maximum number of hours which is allowed by the relevant Centre and which may be in Queensland, if the children are living there, on one occasion per year.
In order to facilitate Order 5 the father shall provide to the mother in writing:
(a)Within 12 weeks of the date of these Orders the names and contact details of all proposed Contact Centres in New South Wales and Queensland.
(b)Not less than four weeks before each proposed visit:
(i)the name of the nominated Centre;
(ii)the date, time and duration of the proposed visit
AND
(c)The mother shall respond to the…

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 Neligan and Lassey

Details

AGLC: Neligan and Lassey [2012] FamCA 257
Case: [2012] FamCA 257
Decision Date: 18 April 2012

CaseChat Overview and Summary

This matter concerned parenting orders made by Cleary J in the Federal Circuit and Family Court of Australia. The dispute involved the father, Mr Neligan, and the mother, Ms Lassey, regarding the future care and contact arrangements for their two children, D and C.

The court was required to determine the most appropriate parenting arrangements for the children, including issues of parental responsibility, living arrangements, and the nature and extent of contact between the children and the mother. Additionally, the court had to consider orders to protect the children from contact with a third party, Mr K, and to ensure the safety and well-being of the children in light of the circumstances.

Cleary J discharged all prior parenting orders and made new orders granting the father sole parental responsibility and ordering that the children live with him. Contact between the children and the mother was significantly restricted, to occur on not less than four occasions per year at a professional Contact Centre, with specific provisions for notification, agreement, and cost-sharing. The court also made orders restraining both the mother from bringing the children into contact with Mr K and Mr K from making contact with the children or attending their school, noting these injunctions were for the personal protection of the children and could lead to arrest without warrant upon contravention. The court also stipulated communication protocols, including weekly telephone calls for the mother and specific provisions for special occasions, with limitations on telephone contact if the mother failed to make calls on two consecutive occasions. The Independent Children’s Lawyer was directed to provide copies of the orders to relevant government departments and to Mr K. The father was ordered to keep the mother informed of the children's schooling and health, and to provide schools with a copy of the orders. The orders incorporated a Fact Sheet detailing obligations, consequences of contravention, and available assistance.

Orders

Orders of the court

That all prior parenting orders are hereby discharged.

That the father Mr Neligan have sole parental responsibility for the children D born … August 2004 and C born … October 2005 (“the children”).

That the children live with the father.

That the father and the mother keep each other advised in writing (including email and text) of a current contact address and current telephone number.

That the children spend time with the mother on not less than four occasions per year at a Contact Centre and at times agreed between the parents and failing agreement otherwise in April, July, October and January; provided that the time is supervised in a professional Contact Centre with each period to consist of the maximum number of hours which is allowed by the relevant Centre and which may be in Queensland, if the children are living there, on one occasion per year.

In order to facilitate Order 5 the father shall provide to the mother in writing:

(a) Within 12 weeks of the date of these Orders the names and contact details of all proposed Contact Centres in New South Wales and Queensland.

(b) Not less than four weeks before each proposed visit:

(i) the name of the nominated Centre;

(ii) the date, time and duration of the proposed visit

AND

(c) The mother shall respond to the father by telephone, email or in writing confirming her intention to spend time (or not) with the children on each nominated occasion not less than 14 days before the proposed visit.

(d) On any occasion when the father does not receive such confirmation from the mother he is authorised to cancel the visit without further reference to the mother.

(e) Each parent shall do all acts and things necessary to complete assessment and approval as is required for use of the Contact Centre(s) proposed.

(f) Each parent shall share equally in the costs of attendance on each occasion at the Contact Centre.

(g) Each parent shall personally bear the costs of travel to the nominated Contact Centre.

The mother may forward to the children at the contact address provided pursuant to Order 4 cards, letters, photographs and gifts and in that regard the father may read or examine same and need not pass any item to the child in question if unsuitable in his view.

The mother may telephone the children each week and failing agreement otherwise on Wednesday between 6.00 pm and 6.30 pm and the father shall assist the children to receive those calls.

In the event that the mother fails to telephone on two consecutive occasions without prior explanation to the father then the telephone calls may thereafter only be made by the mother in accordance with Order 10 herein.

10.

The mother may telephone the children on Mother’s Day; Easter Sunday and on Christmas Eve between 6.00 pm and 6.30 pm on each of those days.

11.

The mother is restrained from bringing the children or either of them into contact in person or by telephone with Mr K born … 1983.

12.

Pursuant to s 68B(1) of the Family Law Act 1975 (Cth) Mr K born … 1983 is restrained from:

(a) Making contact with the children D born … August 2004 and C born … October 2005 or either of them in person, by telephone and by any other means;

AND

(b) Entering or remaining in a school which the children or either of them attend.

NOTING that this is an injunction for the personal protection of the children and either of them which may give rise to arrest by Police without warrant pursuant to Order 68C of the Family Law Act 1975 (Cth).

13.

The Independent Children’s Lawyer shall:

13.1 Provide a copy of these Orders and Reasons for Judgment to the Proper Officer of the following organisations:

13.1.1 Department of Family and Community Services, New South Wales;

13.1.2 Department of Communities (Child Safety Services), Queensland; and

13.1.3 Office for Children, Youth & Family Support, Australian Capital Territory.

13.2 Forward a copy of this Order to Mr K at the last known address in records produced by subpoena.

14.

The father shall:

(a) Advise the mother in writing of the following:

(i) the name of the school(s) the children attend and any changes to enrolment;

(ii) serious illness and injury of the children or either of them and treatment undertaken.

(b) To the extent that it is necessary, authorise the schools attended by the children to provide to the mother at her own expense copies of school reports and school photographs.

15.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of 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 these particulars are included in these orders.

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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