FEDERAL CIRCUIT COURT OF AUSTRALIA
| NORTHEY & CLAUGHTON | [2014] FCCA 1260 |
| Catchwords: FAMILY LAW – Embittered parenting and property dispute – both parents lacking insight and blaming the other for all problems – child fearful of father – whether fear wholly caused by mother – mother resisting any time with father – whether child should spend no time with father – father seeking change of residence – orders made as sought by Independent Children’s Lawyer – father inheriting most of property pool – short marriage – mother having significant health difficulty and associated lack of income-earning capacity – property adjusted 65/35 in favour of father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2), 60CC(2A), 60CC(3) |
| Goode v Goode [2006] FamCA 1346 Stanford v Stanford (2012) 247 CLR 108 |
| Applicant: | MS NORTHEY |
| Respondent: | MR CLAUGHTON |
| File Number: | MLC 8359 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 7, 8, 9 & 10 April 2014 |
| Date of Last Submission: | 10 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 25 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Serra |
| Solicitors for the Applicant: | O'Farrell Robertson McMahon |
| Counsel for the Respondent: | Ms Tulloch |
| Solicitors for the Respondent: | J A Middlemis |
| Counsel for the Independent Children's Lawyer: | Ms Boymal |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting orders be discharged.
The mother and father have equal shared parental responsibility for the child X born (omitted) 2001.
The child live with the mother.
The mother and father forthwith do all acts and things, including the mother taking the child to the intake assessment, and execute all necessary documents to participate in Fairground Children’s Contact Service (“Fairgrounds”) for the purpose of the child spending supervised time with the father.
Until further order, the child spend supervised time at first instance for up to two hours each fortnight at times and days as nominated by the Coordinator at Fairgrounds.
The supervised time referred to in order 5 herein be commenced with the view to enable the time between the child and the father to extend to periods of unsupervised time within and outside of Fairgrounds at the discretion of Fairgrounds and the child, provided that the commencement and conclusion of time takes place at Fairgrounds.
The mother and father do all acts and things and execute all necessary documents to enable the child to continue to attend upon Ms L for the purpose of therapeutic counselling with the view to repairing the relationship between the child and father, and the mother, father and child shall attend as directed by her.
Ms L, at her discretion, see the child alone, the child with each of the mother or father or the mother and father alone.
Until time commences at Fairgrounds, and thereafter, at Ms L’s discretion, the child spend time with the father in the presence or partial presence of Ms L as part of the therapeutic process.
The therapeutic counselling with Ms L shall be non-privileged and separate to the Court.
The mother…
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- Northey and Claughton [2014] FCCA 1260
- Case
- [2014] FCCA 1260
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the appropriate orders for parental responsibility, the child's living arrangements, and the nature and extent of time the child would spend with the father. The court also needed to consider measures to facilitate the repair of the child's relationship with the father, address parental anxieties and distress, and ensure the child's personal therapeutic needs were met. Furthermore, the court was required to make orders regarding communication between various professionals involved in the case and the parents, as well as to prevent denigration of either parent in the child's presence.
The court's reasoning focused on establishing a framework for supervised contact between the child and the father, with the ultimate aim of progressing to unsupervised time. This was to be facilitated through the services of Fairground Children’s Contact Service and therapeutic counselling with Ms L, with the goal of repairing the child's relationship with the father. The court also ordered both parents to attend counselling to address their respective issues, and for the child to receive personal counselling. The court further ordered the preparation of a supplementary family report to assist in future determinations. The orders discharged previous parenting arrangements and established equal shared parental responsibility, with the child to live with the mother, while implementing a structured approach to supervised time with the father.
Orders
Orders of the court
1.
All previous parenting orders be discharged.
2.
The mother and father have equal shared parental responsibility for the child X born (omitted) 2001.
3.
The child live with the mother.
4.
The mother and father forthwith do all acts and things, including the mother taking the child to the intake assessment, and execute all necessary documents to participate in Fairground Children’s Contact Service (“Fairgrounds”) for the purpose of the child spending supervised time with the father.
5.
Until further order, the child spend supervised time at first instance for up to two hours each fortnight at times and days as nominated by the Coordinator at Fairgrounds.
6.
The supervised time referred to in order 5 herein be commenced with the view to enable the time between the child and the father to extend to periods of unsupervised time within and outside of Fairgrounds at the discretion of Fairgrounds and the child, provided that the commencement and conclusion of time takes place at Fairgrounds.
7.
The mother and father do all acts and things and execute all necessary documents to enable the child to continue to attend upon Ms L for the purpose of therapeutic counselling with the view to repairing the relationship between the child and father, and the mother, father and child shall attend as directed by her.
8.
Ms L, at her discretion, see the child alone, the child with each of the mother or father or the mother and father alone.
9.
Until time commences at Fairgrounds, and thereafter, at Ms L’s discretion, the child spend time with the father in the presence or partial presence of Ms L as part of the therapeutic process.
10.
The therapeutic counselling with Ms L shall be non-privileged and separate to the Court.
11.
The mother and father at their equal expense obtain a report from Ms L prior to the next court date and the cost of the therapeutic counselling shall be at the equal expense of the mother and father.
12.
The mother and father attend a Post Separation Parenting Course at Centacare (omitted) called ‘Keeping Kids in Mind’ and provide a certificate of completion to the other parent and the Independent Children’s Lawyer.
13.
The father attend upon a mental health professional to address issues including but not limited to his distress surrounding the nature of his relationship with the child and his emotional presentation and provide the name of such professional to the Independent Children’s Lawyer.
14.
The mother attend upon a mental health professional to address issues including but not limited to her anxiety in relation to the child spending time with the father and her past relationship with the father and provide the name of such professional to the Independent Children’s Lawyer.
15.
The mother and father do all acts and things and execute all necessary documents to enable the child to attend upon Ms D for the purpose of the child’s personal counselling and the cost of such counselling shall be shared equally between the mother and father.
16.
The Independent Children’s Lawyer be at liberty to communicate with Ms L, Ms D and the respective counsellors of the parents.
17.
Ms L be at liberty to communicate with Fairgrounds.
18.
There be such further or other time spent between the child and the father as may be agreed between the parents.
19.
The mother and father, their servants and/or agents be and are hereby restrained from:-
(a) using or permitting the use of any name other than “X” in respect of the child; and
(b) denigrating the other parent in the presence or hearing of the child.
20.
The father be at liberty to receive school reports, school notices, photograph order forms and any other such school documents ordinarily provided to parents at his request and expense.
21.
The mother and father keep the other advised of their residential address and telephone contact details.
22.
The mother keep the father advised of any medical emergency or major illness of the child.
23.
The Independent Children’s Lawyer forward a copy of these Orders and Judgment to Ms L, Ms D, Mr T and Fairgrounds.
24.
The mother and father forward a copy of these Orders and Judgment to their respective mental health professional.
25.
Prior to the adjourned hearing date the parties and the child attend upon Mr T for the purposes of the preparation of a supplementary family report pursuant to section 62G(2) of the Family Law Act 1975, to be provided to the Court and Mr T shall ensure that he confers with the child alone for such time as he deems appropriate as part of the report and the report shall address the issue of time spent between the child and father.
26.
The proceedings in relation to the child be adjourned to 12 March 2015 at 9.30am.
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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