Palmer and Kerr - [2016] FCCA 657

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMER & KERR

[2016] FCCA 657

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the children – two children aged 10 and 8 years – need to protect children from physical and psychological harm – whether father should spend any time with children – whether evidence sufficient to warrant an order that father should spend no time with children – “cautious robustness” approach.

Legislation:

Evidence Act 1995 (Cth), s.56

Family Law Act 1975 (Cth), ss.10G, 13C, 60B, 60CA, 60CC, 62G, 68B, 69ZT

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Sandford & Cobb [2016] FamCA 11

Applicant:

MR PALMER

Respondent:

MS KERR

File Number:

SYC 677 of 2015

Judgment of:

Judge Scarlett

Hearing date:

11 March 2016

Date of Last Submission:

11 March 2016

Delivered at:

Sydney

Delivered on:

31 March 2016

REPRESENTATION

Counsel for the Applicant:

Ms Steggall

Solicitors for the Applicant:

Wood Marshall Williams

Respondent:

In person

Independent Children's Lawyer:	Mr Meehan
Solicitors for the Independent Children's Lawyer:	JPM Legal

ORDERS

UNTIL FURTHER ORDER

In accordance with the provisions of section 13C of the Family Law Act 1975 the Applicant and the Respondent and the children X born (omitted) 2005 and Y born (omitted) 2007 are to attend family counselling on a fortnightly basis commencing as soon as possible from the date of these Orders at an organisation agreed between the parties or failing agreement at an organisation nominated by Relationships Australia in such manner as recommended by the organisation and the cost of the counselling is to be met by the parties in equal shares.
After the children X and Y have attended six (6) sessions of counselling a preliminary report is to be provided by the counsellor to the Court and the parties are to have liberty to relist the matter on seven (7) days’ notice if the report raises serious concerns about the risk of harm to either or both of the children if supervised time with the Applicant father is to commence in accordance with Order (3) following.
Upon the children X and Y attending no fewer than six (6) counselling sessions the children are to spend supervised time with the Father every alternate Sunday from 1:00pm to 4:00pm at a supervised contact centre to be agreed by the Father and Mother and failing agreement the closest centre with availability for a period of three (3) months (hereinafter referred to as “the short visit period”).
On completion of the short visit period the children are to spend time with the Father unsupervised from 10:00am to 4:00pm on alternating Sundays (hereinafter referred to as “the day visits period”) and for the purpose of this order the Father is to be responsible for collecting the children from and returning the children to the Mother’s home at the commencement of and the conclusion of his time with the children.
The Mother is to undertake a…

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 Palmer and Kerr

Details

AGLC: Palmer and Kerr [2016] FCCA 657
Case: [2016] FCCA 657
Decision Date: 31 March 2016

CaseChat Overview and Summary

In the matter of *Palmer and Kerr*, heard by Judge Scarlett, the dispute concerned interim orders relating to the welfare of two children, X and Y. The applicant father and respondent mother sought various orders concerning the children's time with each parent, communication between the parents, and the children's involvement in counselling and reporting.

The court was required to determine a range of issues including the commencement and nature of the children's time with the father, both supervised and unsupervised, and the conditions precedent to such time. Further issues included the requirement for the mother to attend a parenting course, the arrangements for telephone and online contact between the father and children, and the obligations of both parents regarding communication about the children's health and welfare. The court also considered orders restraining derogatory remarks about each other in the children's presence, the exchange of contact details, and the mandatory participation in family dispute resolution for significant long-term issues. Finally, the court addressed the removal of the children from the Family Law Watch List and the preparation of a Family Report.

The court made orders for the parties and children to attend fortnightly family counselling, with a preliminary report to be provided after six sessions. Following this, supervised time with the father was to commence, progressing to unsupervised day visits after a three-month period. The mother was ordered to complete a 'Parenting after Separation' course. Specific provisions were made for telephone and Skype contact between the father and children, and for the parents to inform each other of any medical issues or hospital admissions concerning the children. The court also mandated polite communication between the parents, restrained derogatory remarks, and required the exchange of contact details. Provisions were made for family dispute resolution for unresolved long-term issues. The children were to be removed from the Family Law Watch List, and a Family Report was to be prepared. All other interim orders sought in the response were dismissed, and the application was transferred to another judge's docket.

Orders

Orders of the court

UNTIL FURTHER ORDER

In accordance with the provisions of section 13C of the Family Law Act 1975 the Applicant and the Respondent and the children X born (omitted) 2005 and Y born (omitted) 2007 are to attend family counselling on a fortnightly basis commencing as soon as possible from the date of these Orders at an organisation agreed between the parties or failing agreement at an organisation nominated by Relationships Australia in such manner as recommended by the organisation and the cost of the counselling is to be met by the parties in equal shares.

After the children X and Y have attended six (6) sessions of counselling a preliminary report is to be provided by the counsellor to the Court and the parties are to have liberty to relist the matter on seven (7) days’ notice if the report raises serious concerns about the risk of harm to either or both of the children if supervised time with the Applicant father is to commence in accordance with Order (3) following.

Upon the children X and Y attending no fewer than six (6) counselling sessions the children are to spend supervised time with the Father every alternate Sunday from 1:00pm to 4:00pm at a supervised contact centre to be agreed by the Father and Mother and failing agreement the closest centre with availability for a period of three (3) months (hereinafter referred to as “the short visit period”).

On completion of the short visit period the children are to spend time with the Father unsupervised from 10:00am to 4:00pm on alternating Sundays (hereinafter referred to as “the day visits period”) and for the purpose of this order the Father is to be responsible for collecting the children from and returning the children to the Mother’s home at the commencement of and the conclusion of his time with the children.

The Mother is to undertake a ‘Parenting after Separation’ course as nominated by the Independent Children’s Lawyer within three (3) months of the date of these Orders.

Upon commencement of the day visits period the Father is to speak to the children over the telephone or via Skype on Tuesdays and Thursdays of each week between the hours of 6:00pm and 8:00pm and for the purpose of this Order the Mother must:

(a) make her mobile telephone available for the Father to contact the children;

(b) keep the Father informed of her current mobile telephone number;

(d) ensure her mobile telephone account is not disconnected; and

(e) use her best endeavours to have the children in a quiet location when speaking with the father and afford the children privacy when speaking to the father.

The Father and the Mother must advise each other as soon as practicable of:

(a) Either or both of the children being admitted to hospital whilst in their respective care;

(b) Any medical problems or illnesses suffered by either or both of the children whilst in their respective care;

(d) Any other matter relevant to the welfare of the children.

For the purpose of communicating regarding the children the parties must communicate by telephone, text massage or email in a polite and civil manner.

The Applicant and the Respondent are restrained from making critical or derogatory remarks about each other or members of their extended families in the presence or hearing of the children or either of them.

10.

The Applicant and the Respondent must advise each other and keep each other advised of their current address and contact telephone number including landline and mobile telephone numbers and advise each other of any changes to those details within twenty-four (24) hours of any such change occurring.

11.

In the event that the parties cannot come to an agreement regarding a major long term issue regarding the children or either of them they must do all things necessary to participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975.

12.

The names of the children X born (omitted) 2005 (a male) and Y born (omitted) 2007 (a female) are to be removed from the Family Law Watch List maintained by the Australian Federal Police forthwith.

13.

All other interim Orders sought in the Response filed on 2 June 2015 are dismissed.

14.

The Applicant and the Respondent and the children are to attend upon a Family Consultant at a time, date and place nominated by the Director of Child Dispute Services at the Sydney Registry of the Court for the purpose of preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975.

15.

The Application is transferred to the docket of Judge Boyle to be listed for mention in Court 3B at a time and on a date to be fixed.

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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