Payne and Payne - [2008] FamCA 694

FAMILY COURT OF AUSTRALIA

PAYNE & PAYNE

[2008] FamCA 694

FAMILY LAW – CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr Payne

RESPONDENT:

Ms Payne

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYF

4343

2003

DATE DELIVERED:

27 May 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

22 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

MCW Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Clifford

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

Orders

Final Children’s Orders in addition to those final Orders made 23 May 2007.

The children, a son born in February 1995 and a daughter born in March 1997 spend time with the father, Mr Payne, as follows:
(a)Each 4th weekend from 6.00 pm Friday until 4.00 pm Sunday. First weekend to commence 20th June 2008.
PROVIDED THAT:
(b) The children’s time with the father is supervised by:
(i)Ms F; or
(ii)Mr and Mrs P; or
(iii)Ms C; or
(iv)such other person agreed to by the parties,
and those persons sign an undertaking in respect of the supervisory responsibilities in accordance with annexure “A” to these orders.
(c)the children’s time with the father is conditional upon the father’s compliance with order 3 below.
In the event of the mother not agreeing to a supervisor nominated by the father then the father may list the matter before a Judicial Registrar of the Court or before a Federal Magistrate to have that person approved by the Court as a suitable supervisor for the father’s time with the children.
The children’s time with the father pursuant to order 1 above be facilitated as follows:
(a)The father is to notify the mother, by email or in writing, no later than seven (7) days prior to each period of time the children are to spend with their father, of the identity of the supervisor for the upcoming period of time. In the event of the mother not previously being provided with the contact details for that supervisor the father is to provide those details.
(b)The mother is to be at liberty to contact the supervisor prior to the upcoming period of time for the children to spend with their father. In the event of the mother not being satisfied that the arrangements for supervision are satisfactory she is to notify the father of same and her reasons for so saying. This communication to be by email.
(c)The mother is to provide to each supervisor nominated from time to time her contact details so that the supervisor may be able to contact the mother should that prove necessary.
(d)Prior to any time the father spends with the children he is to ensure that a signed undertaking in the form annexed to these orders (Annexure “A”) is held by the mother (this need only be provided once and thereafter will apply to each occasion…

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 Payne and Payne

Details

AGLC: Payne and Payne [2008] FamCA 694
Case: [2008] FamCA 694
Decision Date: 27 May 2008

CaseChat Overview and Summary

This matter concerned final children's orders made by Justice Le Poer Trench in the Federal Magistrates Court of Australia. The dispute involved Mr. Payne and Ms. Payne regarding the time their children, a son born in 1995 and a daughter born in 1997, would spend with their father. The court's orders were designed to protect the children from potential emotional harm stemming from the father's mental ill health, as identified by a court expert, Dr. R.

The court was required to determine the specific arrangements for the children's time with their father, including the frequency and duration of contact, and crucially, the conditions and safeguards necessary to ensure the children's well-being. This involved establishing a framework for supervised contact, outlining the responsibilities of supervisors, and detailing the father's obligations regarding his medical treatment and communication with healthcare professionals. The court also had to consider the expressed wishes of the children, their relationship with each parent, and the potential impact of the father's mental state on the children.

Justice Le Poer Trench reasoned that the children needed protection from potential emotional endangerment due to the father's mental ill health, particularly concerning his verbal interactions with them when unwell. The orders established a supervised contact schedule, commencing with specific supervisors and requiring the father to provide notice of the supervisor's identity and contact details to the mother. The father's contact was made conditional upon his compliance with ongoing medical treatment for depression, including taking prescribed medication and attending reviews with Dr. G or another designated professional. The father was required to provide an irrevocable authority to his treating practitioners to notify the mother and the Independent Children's Lawyer if he ceased medication, failed to follow medical advice, or if his mental state was deemed unsuitable for caring for the children. The court also addressed communication between the children and the father, including telephone calls, and stipulated that the mother could monitor and terminate calls if the father made inappropriate remarks. The court gave substantial weight to the expressed wishes of the son, who was 12 years old and wished for significant time with his father, and the daughter, aged 10, who also desired more time with her father. The court noted the son's conflict with his mother and instances of violence towards her, as well as the daughter's distress at farewells exacerbated by the father's emotional state.

The final orders detailed a specific schedule for the children's time with the father, including provisions for notification of supervisors, the mother's right to contact supervisors, and the father's confirmation of attendance. The orders also stipulated the suspension of contact if the father failed to provide the necessary medical authority or if his treating practitioner advised against contact. The Independent Children's Lawyer's role was extended, and provisions were made for the father to receive school reports. The court also included particulars of obligations and consequences for contravention of the orders, as set out in Annexure "B".

Orders

Orders of the court

Final Children’s Orders in addition to those final Orders made 23 May 2007.

The children, a son born in February 1995 and a daughter born in March 1997 spend time with the father, Mr Payne, as follows:

(a) Each 4th weekend from 6.00 pm Friday until 4.00 pm Sunday. First weekend to commence 20th June 2008.

PROVIDED THAT:

(b) The children’s time with the father is supervised by:

(i) Ms F; or

(ii) Mr and Mrs P; or

(iii) Ms C; or

(iv) such other person agreed to by the parties,

and those persons sign an undertaking in respect of the supervisory responsibilities in accordance with annexure “A” to these orders.

In the event of the mother not agreeing to a supervisor nominated by the father then the father may list the matter before a Judicial Registrar of the Court or before a Federal Magistrate to have that person approved by the Court as a suitable supervisor for the father’s time with the children.

The children’s time with the father pursuant to order 1 above be facilitated as follows:

(a) The father is to notify the mother, by email or in writing, no later than seven (7) days prior to each period of time the children are to spend with their father, of the identity of the supervisor for the upcoming period of time. In the event of the mother not previously being provided with the contact details for that supervisor the father is to provide those details.

(b) The mother is to be at liberty to contact the supervisor prior to the upcoming period of time for the children to spend with their father. In the event of the mother not being satisfied that the arrangements for supervision are satisfactory she is to notify the father of same and her reasons for so saying. This communication to be by email.

(c) The mother is to provide to each supervisor nominated from time to time her contact details so that the supervisor may be able to contact the mother should that prove necessary.

(d) Prior to any time the father spends with the children he is to ensure that a signed undertaking in the form annexed to these orders (Annexure “A”) is held by the mother (this need only be provided once and thereafter will apply to each occasion upon which the supervisor is used by the father for his time with the children) in relation to the particular supervisor which the father will have with him on that occasion;

(e) The mother will deliver the children to the supervisor and the father at McDonalds Family Restaurant, at A at the commencement of their time with the father; and

(f) The mother will collect the children from the supervisor and the father at McDonalds Family Restaurant at A at the conclusion of their time with the father.

The father is to confirm by email to the mother on the Thursday immediately before each period of time where he is entitled by these orders to spend time with the children whether he will be at the changeover point on the following day to collect the children. THE MOTHER IS NOT REQUIRED TO LEAVE HER RESIDENCE TO TRAVEL WITH THE CHILDREN TO THE MEETING POINT UNLESS THE FATHER HAS SO CONFIRMED PURSUANT TO THIS ORDER THAT HE WILL BE THERE TO COLLECT THE CHILDREN.

The children’s contact periods with the father provided for in order 1 hereof is conditional upon:

(a) the father attending for regular treatment and review upon Dr G, Medical Officer and/or such other psychologist or psychiatrist to whom Dr G may refer him, at such times and at such frequency as those persons may direct; and

(b) the father continuing to take such medication as prescribed by Dr G, or any other psychiatrist or medical practitioner providing treatment to him; and

(c) the father providing to Dr G or any other psychiatrist/psychologist, or medical practitioner who may be treating him for depression, within seven (7) days of the date of this order and irrevocable authority to notify the mother and the Independent Children’s Lawyer if the father:

(i) ceases to take his prescribed medication;

(ii) ceases to follow medical advice or attend for psychiatric review as may be required of him;

(iii) in his opinion, the father’s mental state is such that he is not able to properly care for the children during contact periods,

AND should the father not provide such an authority, then the children’s time with the father pursuant to order 1 above shall be suspended.

The Independent Children’s Lawyer is to inquire of Dr G and the father’s general practitioner, whether he holds the signed authority prior to the first period of time the children are to spend with the father and then confirm directly with the mother that such authority is held.

In the event of the mother receiving advice from Dr G or another psychiatrist/medical practitioner as to any of the matters referred to in order 3(c) hereof the time for the father to spend with the children is suspended until such time as the mother receives further information from the subject notifier that the facts which gave rise to the notification are no longer matters for concern in relation to the father spending time with the children.

The children communicate with the father by telephone:

(a) each Wednesday evening (or such other day as may be agreed between the parties) between 6.30 pm and 7.00 pm; and

(b) each Sunday when the children are not to spend time with the father pursuant to order 1 above, between 6.30 pm and 7.00 pm,

PROVIDED THAT such calls are not to be longer than 30 minute’s duration. Unless and until the father is provided with the mother’s landline telephone number the mother is to cause the children to make the call to their father at the appointed time and on the appointed day. The mother is to monitor the phone calls and terminate them in the event of the father saying inappropriate things to the children.

The Independent Children’s Lawyer is to provide to Dr G and to the father’s General Practitioner a copy of the orders made today.

10.

The mother do all acts and things necessary to authorise and direct the Principal(s) of whichever school(s) the children may attend to provide to the father, copies of the children’s term school reports (if provided), and information about the children’s academic and extra curricular achievements and progress, and for this purpose the mother will provide to the relevant school Principal(s) a copy of these orders.

11.

Should the father’s time with the children fall on the children’s birthdays or Christmas Eve/Christmas Day then the mother may, at her election, notify the father that the weekend time for the children to spend with him on that occasion will be moved forward or back by one weekend.

12.

The appointment of the Independent Children’s Lawyer is extended for a period of 12 months from the date hereof.

13.

Pursuant to sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “B” and these particulars are included in these orders.

Schedule “B”

I [the father] of [address] hereby authorise and direct Dr [G] to contact the Independent Children’s Lawyer Clyllyn Sperling at the NSW Legal Aid Commission (02) […] and the children’s mother [Ms Payne] (through her solicitor Kylie Holmes (02) […] in the event of your being of the opinion that my health is deteriorating to a level where you think it would be unwise for me to spend time with my children or where you hold the opinion that any of the following conditions apply:

I. I cease to take my prescribed medication;

II. I cease to follow medical advice or attend for psychiatric review as may be required of me;

III. In your opinion, my mental state is such that you believe I am not able to properly care for the children during their time with me under these orders.

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

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Ratio Decidendi

Legal Principle Established

The Court expert Dr R has referred to the prospect of the children being endangered emotionally by the excesses of the father’s words to them when he is not functioning well because of his mental ill health. The children need to be protected from such an event and the orders I make in this case will be designed to build protection for the children at least during a trial period of time the children spend with their father.Additional considerations(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views Both children have expressed a view and wish to spend more time with their father. The son has been particularly pressing for this for some time. It seems apparent that the son blames his mother for preventing the time he would otherwise be able to spend with his father and these views appear to be fuelled by statements the father has made to the children. The son is now 12 years of age and he is entitled to have his views considered and given substantial weight. He appears to be age appropriately mature and there is no suggestion from Dr R that the son’s views should be less valued than those of the average 12 year old. The son has expressed wish to be able and spend very significant time with his father and possibly equal time with that he spends with his mother. The daughter is 10 years of age. She has reached an age where her views and wishes need to be listened to by the Court and given real weight. The daughter, like her brother wishes to spend significant time with her father and as much as equal shared time with the time she spends with her mother. She felt sad when she had to say goodbye to her father. The evidence establishes that the daughter has been very distressed at times of farewell from her father and this has been exacerbated by the father being unable to contain his own emotions at that time.(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child) The evidence of the expert and the parties establish that the children have a close and dependant relationship with each of their parents. The evidence has established that the son has been in conflict with his mother from time to time and has been violent to his sister on occasions. On one occasion the son was brandishing a knife when speaking to his mother. The mother felt apprehensive and very concerned for the son at that time. The mother was so moved by the circumstances that she took the somewhat extreme step of taking the son to the police to report the incident. On that occasion the son was spoken to be a Police Officer and given a warning. The son was told that if similar behaviour came to the attention of the Police in the future then action would be taken. The son has been violent to his mother. He has punched her and kicked her.