Parkin and Sykes - [2012] FamCA 187

FAMILY COURT OF AUSTRALIA

PARKIN & SYKES

[2012] FamCA 187

FAMILY LAW – CHILDREN – Parental responsibility – With whom a child lives – Best interests – Allegations of family violence – Supervised time - Parental alienation - Where the parties are unable to cooperate and communicate – Where the mother is unable to support the child in having a meaningful relationship with the father – Where it would be in the best interests for the child to live with the mother and have limited supervised time with the father

Family Law Act 1975 (Cth) Part VII, s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61DA, s 61DAA, s 65AA

Chappell and Chappell [2008] FamCAFC 143
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Mr Parkin

RESPONDENT:

Ms Sykes

INDEPENDENT CHILDREN’S LAWYER:

Frances Neilson

FILE NUMBER:

PAC

1320

2007

DATE DELIVERED:

29 March 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

30 & 31 August, 1 & 2 September 2011

REPRESENTATION

FOR THE APPLICANT:

Mr Parkin in person (30 & 31 August 2011)
Mr Vassili (1 & 2 September 2011)

COUNSEL FOR THE RESPONDENT:

Ms Kennedy

SOLICITOR FOR THE RESPONDENT:

Tiyce Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ward

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Frances Neilson
Legal Aid NSW

Orders

The following parenting orders are made in respect of the child X born on … February 2001 (“the child”).

Previous Orders

All previous parenting orders in relation to the child be discharged.

Parental Responsibility

The mother have sole parental responsibility for the child.

Live With

The child shall live with his mother.

Spend Time With

The child shall spend time with his father on four occasions each year, such to occur on the third weekend of February, May, August and November in each year.
For the purposes of the child spending time with his father in accordance with the above order such time shall:
6.1.Occur and be supervised by staff at CW Contact Service;
6.2.Be for a period of not less than two hours on each occasion at times convenient to the CW Contact Service in consultation with each parent;
Each parent shall:
7.1.Contact CW Contact Service within seven days to arrange an Intake Assessment;
7.2.Participate in the assessment as scheduled;
7.3.Comply with any appointments made by CW Contact Centre for supervised time in compliance with these orders; and
7.4.Pay the fees nominated by CW Contact Service for the provision of its services.
In the event that CW Contact Service is unable or unwilling to provide supervision as set out in these orders, then supervision is to be undertaken by T Children’s Contact Service and each parent shall comply with the substance of the provisions of the previous orders in relation to that Service.
Not less than two weeks prior to each period in which X is to spend time with the father, the mother shall provide…

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 Parkin and Sykes

Details

AGLC: Parkin and Sykes [2012] FamCA 187
Case: [2012] FamCA 187
Decision Date: 29 March 2012

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in February 2001, with the proceedings brought before Johnston J. The dispute centred on the arrangements for the child's residence, time spent with each parent, and parental responsibility.

The court was required to determine the appropriate parenting orders, including whether to discharge previous orders, who should have parental responsibility, where the child should live, and the nature and extent of the child's time with the father. The court also had to consider the specific issues of contact, information sharing, and the involvement of external services to facilitate contact.

Johnston J ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility, and the child was ordered to live with her. The child was to spend time with the father on four occasions each year, specifically the third weekend of February, May, August, and November. This time was to be supervised by staff at CW Contact Service for a minimum of two hours on each occasion, at times agreed upon by the service and the parents. Both parents were directed to engage with CW Contact Service for an intake assessment and to comply with any scheduled supervised time and associated fees. Provisions were made for an alternative contact service if CW Contact Service was unable or unwilling to provide supervision. The mother was also ordered to provide the father with written updates on the child's activities and wellbeing prior to each period of supervised contact, and to keep the father informed of the child's residential address, school, and medical practitioners. The father was granted liberty to obtain school progress details and to send the child cards, photos, letters, and gifts, with the mother to ensure their receipt. Leave was also granted for the Independent Child Lawyer to release single expert reports to the child's counsellor.

Orders

Orders of the court

The following parenting orders are made in respect of the child X born on … February 2001 (“the child”).

Previous Orders

All previous parenting orders in relation to the child be discharged.

Parental Responsibility

The mother have sole parental responsibility for the child.

Live With

The child shall live with his mother.

Spend Time With

The child shall spend time with his father on four occasions each year, such to occur on the third weekend of February, May, August and November in each year.

For the purposes of the child spending time with his father in accordance with the above order such time shall:

6.1. Occur and be supervised by staff at CW Contact Service;

6.2. Be for a period of not less than two hours on each occasion at times convenient to the CW Contact Service in consultation with each parent;

Each parent shall:

7.1. Contact CW Contact Service within seven days to arrange an Intake Assessment;

7.2. Participate in the assessment as scheduled;

7.3. Comply with any appointments made by CW Contact Centre for supervised time in compliance with these orders; and

7.4. Pay the fees nominated by CW Contact Service for the provision of its services.

In the event that CW Contact Service is unable or unwilling to provide supervision as set out in these orders, then supervision is to be undertaken by T Children’s Contact Service and each parent shall comply with the substance of the provisions of the previous orders in relation to that Service.

Not less than two weeks prior to each period in which X is to spend time with the father, the mother shall provide the father with a written update of X’s progress in Little Athletics, Soccer, Band or any other organised activity that X undertakes. Such letter should also include details of X’s general health and wellbeing.

Specific Issues

10.

The mother shall advise the father and keep him advised of the child’s residential address, school, usual treating general practitioner, any specialist medical practitioner and any counsellor or therapist upon whom he attends.

11.

The mother shall notify the father as soon as reasonably practicable of any significant injury or serious illness suffered by the child.

12.

The father shall be at liberty to obtain from X’s school details regarding X’s progress, including school reports, regardless of any authority the mother may or may not have provided to the relevant school.

13.

The father shall be at liberty to send X cards, photos, letters and gifts and the mother shall ensure that X receives anything sent to him from the father. The mother shall continue to provide the father with current contact details where he may post the items referred to in this order.

14.

The Independent Child Lawyer have leave to release a copy of the Single Expert Reports of Dr B dated 28 August 2011 and 10 January 2011 to X’s counsellor at UNIFAM ….

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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