Olssen and Wise (No.2) - [2016] FCCA 884

FEDERAL CIRCUIT COURT OF AUSTRALIA

OLSSEN & WISE (No.2)

[2016] FCCA 884

Catchwords:
FAMILY LAW – Intense but simmering parental conflict – differing “views” of the children regarding “time with” arrangements – relevance of previous litigation arising out of precipitate action by Father which excluded the Mother – consideration of differing orders for each of the three boys including the weight to be attributed to their views – responsibility of parents ultimately to decide what is best for their children rather than placing undue pressure on the children to make relevant parenting decisions.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2), 60CC(3)(a) – (m), 65DAA(2), (3) & (5)

Cases cited:
Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113
Gillard & Gillard [2015] FamCAFC 169
Goldrick v Goldrick [2007] FamCA 1260
Harrison and Woollard (1995) 18 Fam LR 788
Maldera & Orbel (2014) FLC ¶93-602
Olssen & Wise [2014] FCCA 1594
R and R: Children’s Wishes (2000) 25 Fam LR 712; (2000) FLC ¶92-598
In the Marriage of R (Children’s Wishes) (2002) 29 Fam LR 230; (2002) FLC ¶93-108
In the Marriage of Smythe (1983) 48 ALR 677
U v U (2002) 211 CLR 238
Vigano v Desmond (2012) 47 Fam LR 552

Applicant:

MR OLSSEN

Respondent:

MS WISE

File Number:

CAC 27 of 2012

Judgment of:

Judge Neville

Hearing date:

6 August 2015

Date of Last Submission:

16 December 2015

Delivered at:

Canberra

Delivered on:

19 April 2016

REPRESENTATION

Solicitor/advocate for the Applicant:

Ms C Heusch

Solicitors for the Applicant:

Alliance Family Law, Canberra

Counsel for the Respondent:	Self-represented
Solicitor/advocate for the Independent Children's Lawyer:	Ms M Burgess
Solicitors for the Independent Children's Lawyer:	Legal Aid, ACT

ORDERS

ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:

The parents shall have equal shared parental responsibility for the children, X (born (omitted) 2000), Y (born on (omitted) 2002) and Z (born on (omitted) 2003) (“the children”).
X (born (omitted) 2000) (“X”) shall live and spend time with his parents according to his wishes.

ON A FINAL BASIS, THE COURT FURTHER ORDERS THAT:

Subject to any other agreement in writing between the parties, for the next six months from the date of these orders, Y (born on (omitted) 2002) (“Y”) and Z (born on (omitted) 2003) (“Z”) shall live with their parents in an 8/6 arrangement (8 nights per fortnight with the Father and 6 nights per fortnight with the Mother).
After a period of six months from the date of these Orders, in the event that both Y and Z are of the view that they wish to spend one extra night per fortnight with their Father, both parents are to approach Ms S with a view to her seeing Y and Z, as well as the parents, to make a recommendation about the utility of changing these orders, by consent, for one extra night per fortnight with the Father.
Such a change in the orders as in Order 4 above is to be the only matter…

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 Olssen and Wise (No.2)

Details

AGLC: Olssen and Wise (No.2) [2016] FCCA 884
Case: [2016] FCCA 884
Decision Date: 19 April 2016

CaseChat Overview and Summary

This matter concerned an application before Judge Neville regarding parenting orders for three children, X, Y, and Z. The dispute centred on the arrangements for the children's living arrangements, time spent with each parent, and related matters.

The court was required to determine the specific orders concerning equal shared parental responsibility, the children's living arrangements, and the time each child would spend with their respective parents. Further issues included provisions for communication between parents and children, the involvement of a therapeutic counsellor, medical care, and schooling arrangements for the children.

The court made orders by consent of the parties. These orders established equal shared parental responsibility for all three children. For the eldest child, X, living arrangements and time spent with parents were to be according to his wishes. For the younger children, Y and Z, an initial 8/6 arrangement (nights per fortnight with the Father and Mother respectively) was ordered for six months, with a provision for review and potential adjustment based on the children's wishes and a recommendation from a therapeutic counsellor. The orders also included detailed provisions for special days, holidays, changeovers, telephone contact, therapeutic counselling, medical care, and schooling, with a strong emphasis on restraining parents from discussing proceedings or speaking negatively about each other in the children's presence.

Orders

Orders of the court

ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:

The parents shall have equal shared parental responsibility for the children, X (born (omitted) 2000), Y (born on (omitted) 2002) and Z (born on (omitted) 2003) (“the children”).

X (born (omitted) 2000) (“X”) shall live and spend time with his parents according to his wishes.

ON A FINAL BASIS, THE COURT FURTHER ORDERS THAT:

Subject to any other agreement in writing between the parties, for the next six months from the date of these orders, Y (born on (omitted) 2002) (“Y”) and Z (born on (omitted) 2003) (“Z”) shall live with their parents in an 8/6 arrangement (8 nights per fortnight with the Father and 6 nights per fortnight with the Mother).

After a period of six months from the date of these Orders, in the event that both Y and Z are of the view that they wish to spend one extra night per fortnight with their Father, both parents are to approach Ms S with a view to her seeing Y and Z, as well as the parents, to make a recommendation about the utility of changing these orders, by consent, for one extra night per fortnight with the Father.

Such a change in the orders as in Order 4 above is to be the only matter for consideration with Ms S, in addition to whatever she deems best in her role as therapeutic counsellor.

Both parents are restrained from discussing these Court proceedings with the children, or doing so in their presence, or allowing any other person to do so, or providing the children with a copy of these reasons or Orders.

Both parents are restrained from saying unkind or unpleasant things about the other parent to the children, in their presence or hearing, or allowing any other person to do so.

The Independent Children’s Lawyer is requested to explain only the Orders to the children; there is to be no discussion with them about these reasons except to say that the Court appreciated receiving their views from the Independent Children’s Lawyer and from Ms S regarding spending extra time with their Father and took serious account of them together with all the other evidence before the Court.

Notwithstanding Order 3 above, and subject to any other agreement in writing between the parties, the children shall otherwise spend time with each parent as follows:

(a) On Mother’s Day each year, with the Mother as agreed, and failing agreement, from 4.30pm to 6.30pm;

(b) On Father’s Day each year, with the Father as agreed, and failing agreement, from 4.30pm to 6.30pm;

(c) On the Mother’s birthday each year ((omitted)), with the Mother as agreed, and failing agreement, from 4.30pm to 6.30pm;

(d) On the Father’s birthday each year ((omitted)), with the Father as agreed, and failing agreement, from 4.30pm to 6.30pm;

(e) For each child’s birthday, the children shall spend time with the parent with whom they are not already spending time for two hours as agreed, and failing agreement from 4.30pm to 6.30pm.

(f) For the Christmas period, as follows:

(i) In 2015 and in alternate years thereafter, from 12 noon on 24 December to 5.00pm on 28 December, with the Mother.

(ii) In 2016 and in alternate years thereafter, from 12 noon on 24 December to 5.00pm on 28 December, with the Father.

(iii) Following which, the arrangements referred to in Order 3 shall recommence at the point at which they would have been at had there been no Christmas arrangement.

Changeovers

10.

For the purposes of changeover for time pursuant to Orders 3 and 9, unless otherwise agreed in writing, the parent having the additional time with the children will collect the children at the commencement of their time from the other parent’s residential address and return them at the conclusion of their time to the other parent’s residential address.

11.

For the purposes of all other changeover, unless otherwise agreed in writing, the Mother will collect the children from the Father’s residential address at the commencement of her time and the Father will collect the children from the Mother’s residential address at the commencement of his time.

Telephone Contact

12.

a) The parents be at liberty to telephone the children each Tuesday when the children are not in their care at a time to be agreed, and failing agreement, between 5.30pm to 6.00pm;

b) The children be at liberty to call either parent according to their wishes.

Therapeutic counselling

13.

a) Following these Orders, the parties shall facilitate the children attending upon Ms S for a therapeutic counselling session, with any further appointments for any or all of the children to be made at the discretion and guidance of Ms S;

b) Absent any specific medical emergency, the parents are mutually restrained from unilaterally taking any (or all) of the children to any counsellor, psychologist, or other health care professional without the written consent of the other party.

14.

Payment of Ms S’s fees for therapeutic counselling shall be equally shared by the parents.

Medical

15.

The parents shall advise each other as soon as possible by the best available means in the event of the following occurring:

(a) The child being injured or falling seriously ill;

(b) The child requiring urgent medical treatment by a doctor or ambulance crew; or

and shall provide any necessary authority to the children’s treating medical practitioners to enable the other to obtain written or oral information about any treatment, consultation, diagnosis or prognosis in relation to the children.

16.

The parents are at liberty to obtain all medical records and to consult with the children’s medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.

17.

The parents agree that they will share equally expenses or gap of expenses not covered by Medicare or Private Health Cover in relation to medical, health, dental and orthodontic costs including, but not limited to, costs of prescriptions. Copies of receipts are to be provided to the other parent as evidence of the costs incurred.

Schooling

18.

Unless otherwise agreed by the parents in writing, Y and Z will continue to attend (omitted) College in (omitted) (“(omitted) College”) until the end of Year 12.

19.

X will remain at his present school but the parties will do all things and sign all documents to enrol X in (omitted) College, commencing Term 1, 2016 until the end of Year 12.

20.

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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