FEDERAL CIRCUIT COURT OF AUSTRALIA
| OLSSEN & WISE | [2014] FCCA 1594 |
| Catchwords: FAMILY LAW – Interim parenting contest – long-time existing consent parenting orders – Father’s unilateral action to take child to psychologist – involvement of other children in psychological testing without notice to or consent of Mother – significant questions of lack of proper process – consideration of embroilment of children in parenting dispute – consideration of “practical injustice” (including procedural fairness) in family law processes. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC(1) & (2), 60CC(3)(a) – (k) Federal Circuit Court Act 1999, ss.3, 14, 42 |
| Cassidy & Cassidy [2009] FamCAFC 125 Collu & Rinaldo [2010] FamCAFC 53 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Dobbs v Brayson (No.2) (2008) 38 Fam LR 95 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 KPR & MRS [2007] FamCA 1334 McCall v Clark (2009) 41 Fam LR 483 Maluka v Maluka (2012) 45 Fam LR 129 Mazorski v Albright (2008) 37 Fam LR 518 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 Moose & Moose (2008) FLC ¶93-375 RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest (2012) 247 CLR 304; [2012] HCA 47 SCVG & KLD [2014] FamCAFC 42 Sigley v Evor (2011) 44 Fam LR 439 Shaeffer v Jacobs (2011) FLC ¶93-468 Slater v Light (2012) 45 Fam LR 41 |
| Applicant: | MR OLSSEN |
| Respondent: | MS WISE |
| File Number: | CAC 27 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 10 July 2014 |
| Date of Last Submission: | 15 July 2014 |
| Delivered at: | Canberra |
| Delivered on: | 24 July 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Armstrong Legal |
| Solicitors for the Respondent: | Watts McCray |
| Solicitors for the Independent Children's Lawyer: | Legal Aid, ACT (appointed subsequent to interim hearing) |
ORDERS
The existing orders of 2008 shall continue;
The children X (born (omitted) 2000), X. (born (omitted) 2002) and Z (born (omitted) 2003) (“the children”) are to be returned to their Mother at the earliest possible time in accordance with the 2008 orders, but only after the Independent Children’s Lawyer has been able to speak with them as noted in these orders;
Absent a medical emergency, and excepting regular health issues (e.g. colds, flu and similar common ailments) both parents are restrained from taking the children to see any health care professional (including any psychologist) without the prior written notice to (a message via email or SMS will be taken as written notice), and agreement of, the other parent, or order of the Court;
Pursuant to the 2008 and 2012 orders, the children are to attend their current schools;
Within 7 days of the date of these orders, the parties (and the Independent Children’s Lawyer) are to advise the Court whether a Part 15 expert should be retained to provide a report that…
Continue reading Olssen and Wise
Sign in free to access the full text
- AGLC
- Olssen and Wise [2014] FCCA 1594
- Case
- [2014] FCCA 1594
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms of the ongoing parenting orders, particularly in light of the children's ages and the need for their input. Key issues included the process for obtaining medical and psychological assessments for the children, the role of the Independent Children's Lawyer, and the communication protocols between the parents regarding the children's well-being and education. The court also needed to address the children's understanding of the proceedings and their mother's assurances regarding any views they might express.
Judge Neville reasoned that the existing orders provided a framework for the children's care, but required clarification and specific directives to ensure their best interests were met. The court emphasised the importance of parental agreement or court authorisation for medical and psychological interventions, absent emergencies. The Independent Children's Lawyer was tasked with explaining the orders to the children and conveying their mother's commitment not to take adverse action based on their expressed views. The court also directed the parties to consider the need for expert reports and to advise on the appropriate type of consultant.
Orders
Orders of the court
1.
The existing orders of 2008 shall continue;
2.
The children X (born (omitted) 2000), X. (born (omitted) 2002) and Z (born (omitted) 2003) (“the children”) are to be returned to their Mother at the earliest possible time in accordance with the 2008 orders, but only after the Independent Children’s Lawyer has been able to speak with them as noted in these orders;
3.
Absent a medical emergency, and excepting regular health issues (e.g. colds, flu and similar common ailments) both parents are restrained from taking the children to see any health care professional (including any psychologist) without the prior written notice to (a message via email or SMS will be taken as written notice), and agreement of, the other parent, or order of the Court;
4.
Pursuant to the 2008 and 2012 orders, the children are to attend their current schools;
5.
Within 7 days of the date of these orders, the parties (and the Independent Children’s Lawyer) are to advise the Court whether a Part 15 expert should be retained to provide a report that would involve both parents and the children, or whether a report be prepared by a Regulation 7 consultant, which report is to include psychological testing used in family law proceedings;
6.
The Independent Children’s Lawyer is requested to explain these orders to the children, and is further requested to inform them that their Mother has advised the Court by way of sworn affidavit that she will not take any adverse action against the boys as a result of any view expressed by them recorded in the material currently filed with the Court.
7.
The Court requests that Independent Children’s Lawyer provide a copy of these reasons to Ms S, and to the expert to be appointed.
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.