PEDRANA & COX - [2012] FamCA 739

FAMILY COURT OF AUSTRALIA

PEDRANA & COX

[2012] FamCA 739

FAMILY LAW - CHILDREN – With whom a child lives – With whom a child spends time – Best interests of the child – Parental responsibility – Where the Father originally sought unsupervised time with the child – Where the Mother has consistently supervised the time the Father spends with the child – Where the Mother has consistently maintained a fear that the Father will harm the child – Where the Mother has made many serious allegations against the Father – Where the Father had a sexual relationship with his sister when they were young adolescents – Where various experts have found the Father poses minimal to no risk to the child – Where the Mother refused to accept the evidence that the Father poses no risk – Where the Father amended his proposed orders to seek that the child live with him – Where the Mother changed her view on the risk posed by the Father during the final days of trial following another expert report – Where the Mother changed her orders sought to allow the Father unsupervised time – Where the Mother’s conversion is suspicious – Where there is evidence of enmeshment – Where the Mother suffers from a heart condition – Where the Mother has suffered severe anxiety and emotional breakdowns throughout the proceedings – Where the Mother is advised to undertake therapy – Whether the Mother is capable of emotionally facilitating the child having a meaningful relationship with the Father – Where the child may suffer psychological harm in the Mother’s care – The child to live with the Father – The Mother to have no contact for two months – The Father to have sole parental responsibility

Family Law Act 1975 (Cth) – s 60CC, s 121

Rosa v Rosa [2009] FamCAFC 81

APPLICANT:

Mr P Pedrana

RESPONDENT:

Ms Cox

INDEPENDENT CHILDREN’S LAWYER:

Leisa Toomey, Solicitor

FILE NUMBER:

BRC

7647

2007

DATE DELIVERED:

30 August 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

25 July 2011 to 28 July 2011,
28 November 2011 to
30 November 2011 and

4 June 2012 to 7 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT:

Everingham Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

DA Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Thiele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Schultz Toomey O’Brien Lawyers

Orders

UPON THE UNDERTAKING OF THE MOTHER TO COMPLY WITH THE PROVISIONS OF S 121

AND UPON THE UNDERTAKING OF THE FATHER NOT TO BRING THE CHILD, C PEDRANA-COX BORN … MAY 2005, INTO THE PRESENCE OF MR S AND TO ONLY BRING THE CHILD INTO THE PRESENCE OF MR D PEDRANA (THE FATHER’S BROTHER) AT FAMILY FUNCTIONS

IT IS ORDERED THAT:

All previous Orders be discharged, save for Order (16) of the Order of this Honourable Court dated 16 April 2008.
The child, C PEDRANA-COX born ……

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 PEDRANA & COX

Details

AGLC: PEDRANA & COX [2012] FamCA 739
Case: [2012] FamCA 739
Decision Date: 30 August 2012

CaseChat Overview and Summary

The matter of *Pedrana & Cox* concerned orders made by Bell J in the Federal Circuit Court of Australia regarding the living arrangements and parental responsibility for a child, C Pedrana-Cox. The dispute involved the mother and father of the child, with undertakings provided by both parties concerning their future conduct and interactions with the child.

The court was required to determine the primary residence of the child, the allocation of parental responsibility, and the nature and extent of contact the mother would have with the child. Additionally, the court needed to establish mechanisms for information sharing between the parents regarding the child's education and health, and to set parameters for communication and conduct between the parties. The court also addressed the role and responsibilities of the Independent Children's Lawyer in organising counselling and supervising contact.

Bell J made orders discharging previous orders, save for one dated 16 April 2008. The child was ordered to live with the father, who was granted sole parental responsibility. The orders authorised schools and health professionals to provide information to the mother at her cost, and mandated that both parents keep each other informed of the child's health and their contact details. Crucially, the mother was prohibited from spending time with the child for two months, followed by a period of supervised contact, and then unsupervised contact, with specific communication limits imposed during the initial period. The Independent Children's Lawyer was tasked with organising counselling for the child and nominating supervisors for contact. The court also included provisions regarding the sharing of travel costs for contact and the costs of the Independent Children's Lawyer if not funded by Legal Aid.

Orders

Orders of the court

UPON THE UNDERTAKING OF THE MOTHER TO COMPLY WITH THE PROVISIONS OF S 121

IT IS ORDERED THAT:

All previous Orders be discharged, save for Order (16) of the Order of this Honourable Court dated 16 April 2008.

The child, C PEDRANA-COX born … May 2005, live with the Father.

The Father to have sole parental responsibility for the child.

The within Orders hereby authorise the school/s attended by the child to provide to the Mother, upon her request and at her cost, copies of school reports, school newsletters, applications for class photographs and the like AND FURTHER to provide information to the Mother in relation to the child’s educational and social progress.

The within Orders hereby authorise any medical and/or allied health professional consulted by the child to provide to the Mother, upon her request and at her cost, copies of documents and/or information in relation to the child’s health and welfare.

The Mother and Father to keep the other informed as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to each party.

The Mother and Father keep each other informed of their residential address and landline and mobile telephone numbers and provide details of any change within forty-eight (48) hours.

None of the parties shall denigrate any other party involved in this matter within the child’s presence or hearing, and shall remove the child from the presence of any other person so doing.

IT IS FURTHER ORDERED THAT:

The Mother spend no time with the child for a period of two (2) months from today’s date.

10.

The Mother communicate with the child by way of telephonic communication and/or electronic communication on no more than three (3) periods per week, such periods to extend for no longer than forty-five (45) minutes.

11.

The Independent Children’s Lawyer be responsible for the organisation of

on-going counselling for the child.

12.

Leave given to the Independent Children’s Lawyer to supply to the counsellor referred to in Order (11) hereof, any documentation from the Court file including subpoenaed documentation, if necessary.

13.

After the expiration of two (2) months from today’s date and for a period of three (3) months, the Mother spend supervised time with the child each alternate Saturday and Sunday from 10.00 am until 4.00 pm each day, with the Independent Children’s Lawyer to nominate such supervisor.

14.

After the expiration of three (3) months hereinbefore referred to in Order (13) hereof, the Mother spend unsupervised time with the child each alternate weekend between the hours of 9.00 am Saturday until 5.00 pm on Sunday, and thereafter as agreed between the Mother and the Father.

15.

The Mother and Father to share the cost of the Mother’s travel for spending time with the child.

16.

Should the Independent Children’s Lawyer not be funded by Legal Aid, the Mother and Father to share equally the costs of such further representation.

17.

Leave be given to the Independent Children’s Lawyer to apply to re-list the matter before the Honourable Justice Bell on two (2) weeks notice to all parties.

18.

Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.