Pieper & Jesberg & Ors - [2020] FamCA 989

FAMILY COURT OF AUSTRALIA

PIEPER & JESBERG AND ORS

[2020] FamCA 989

FAMILY LAW – CONTRAVENTION – consequences for less serious breach.

FAMILY LAW – PARENTING – variation of orders following a finding that a parenting order has been contravened without reasonable excuse – balancing flaws in parenting capacity of each parent.

FAMILY LAW – PARENTING – oral application by mother for sole parental responsibility for immunisation of the children.

FAMILY LAW – PARENTING – s 65L of Family Law Act 1975 (Cth) - supervision by a Family Consultant of implementation of parenting orders not available.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Pieper

RESPONDENT:

Ms Jesberg

2^ND RESPONDENT:

Mr Nader

3^RD RESPONDENT:

Ms E Jesberg

INDEPENDENT CHILDREN’S LAWYER:

Mr Finn

FILE NUMBER:

MLC

8376

2012

DATE DELIVERED:

2 October 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

2 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE 2^ND RESPONDENT:

Excused

SOLICITOR FOR THE 2^ND RESPONDENT:

COUNSEL FOR THE 3^RD RESPONDENT:

In person

SOLICITOR FOR THE 3^RD RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

VM Family Lawyers

Orders

Each of the Father and the Mother attend upon Ms FF, for the purpose of reportable supervision and counselling (“the reportable supervision”) in relation to the compliance with and carrying out of the parenting orders made with respect of the children B and C (twins), born … 2007, and D, born … 2010 (together “the children”).
For the purpose of the reportable supervision:
(a)       Each of the Father and the Mother be responsible and pay for one equal share of the costs of such reportable supervised sessions capped at $600.00 per parent;
(b)       Each of the father and the Mother comply with all lawful requests and directions of Ms FF;
(c)       Each of the Father and the Mother facilitate, as may be directed, the children (or any of them) to attend upon Ms FF and Ms FF to explain the operation of these orders;
(d)       At the conclusion of the reportable supervision sessions, Ms FF provide a short report with respect to the family’s progress in the reportable supervision and, thereafter and if directed to do so, the independent children’s lawyer cause such report to be attached to an affidavit by Ms FF and filed with the Court;
(e)       The independent children’s lawyer provide to Ms FF copies of her previous reports (and any transcript of Ms FF), the Reasons for Judgment of 17 March and 27 August 2020 together with the sec 11F report by Ms EE and any further material, including any affidavits filed within these proceedings, as may be deemed appropriate by the independent children’s lawyer .
For the purpose of paragraph 2(a) of this Order, the mother and the father each cause to be deposited with the Independent Children's Lawyer (VM…

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.

Keep reading for free

Create a free CaseChat account to read Pieper & Jesberg & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FamCA 989
Decision Date: 2 October 2020

CaseChat Overview and Summary

This case involved a contravention application brought by the mother against the father, and an oral application by the mother for sole parental responsibility regarding the immunisation of the children. The proceedings were heard by Bennett J in the Family Court of Australia. The dispute concerned the father's alleged contravention of existing parenting orders and the mother's request to vary those orders in relation to the children's vaccination status.

The court was required to determine whether the father had contravened the parenting orders without reasonable excuse, and if so, what consequences should follow for this less serious breach. Additionally, the court had to consider the mother's oral application for sole parental responsibility for the immunisation of the children, and whether to grant leave for this application to proceed. The court also had to address the appropriate parenting arrangements for the children, B, C, and D, given the findings of contravention and the ongoing parental dispute.

Bennett J found that the father had contravened the parenting orders without reasonable excuse. In determining the consequences, the court balanced the flaws in the parenting capacity of each parent and ordered supervised counselling for both parents with a Ms FF. The court also made significant adjustments to the parenting arrangements, suspending certain previous orders and detailing specific time arrangements with the mother, including a new schedule for changeovers. The mother's oral application for sole responsibility for immunisation was granted leave to proceed, with directions for the filing of evidence and a future hearing date. The father was also directed to obtain a mental health plan and seek therapy.

Orders

Orders of the court

Orders

1. Each of the Father and the Mother attend upon Ms FF, for the purpose of reportable supervision and counselling (“the reportable supervision”) in relation to the compliance with and carrying out of the parenting orders made with respect of the children B and C (twins), born … 2007, and D, born … 2010 (together “the children”).

2. For the purpose of the reportable supervision:

2. (a) Each of the Father and the Mother be responsible and pay for one equal share of the costs of such reportable supervised sessions capped at $600.00 per parent;

2. (b) Each of the father and the Mother comply with all lawful requests and directions of Ms FF;

2. (c) Each of the Father and the Mother facilitate, as may be directed, the children (or any of them) to attend upon Ms FF and Ms FF to explain the operation of these orders;

2. (d) At the conclusion of the reportable supervision sessions, Ms FF provide a short report with respect to the family’s progress in the reportable supervision and, thereafter and if directed to do so, the independent children’s lawyer cause such report to be attached to an affidavit by Ms FF and filed with the Court;

2. (e) The independent children’s lawyer provide to Ms FF copies of her previous reports (and any transcript of Ms FF), the Reasons for Judgment of 17 March and 27 August 2020 together with the sec 11F report by Ms EE and any further material, including any affidavits filed within these proceedings, as may be deemed appropriate by the independent children’s lawyer .

3. For the purpose of paragraph 2(a) of this Order, the mother and the father each cause to be deposited with the Independent Children's Lawyer (VM Lawyers Commonwealth Bank BSB … Account No …19) the sum of $600 within 7 days, such monies to be paid out to Ms FF upon production of an invoice for same. IT IS NOTED THAT the estimated cost of Ms FF’s services is $1200.

PARENTING ARRANGEMENTS – UNTIL FURTHER ORDER IT IS ORDERED:

4. That paragraphs 5(c), 5(d), 5(e) and 5(f) of the Order made 17 March 2020 be suspended.

5. The children spend time with the Mother as follows:

5. (a) Until the conclusion of Term 4 in 2020 (scheduled to be 18 December 2020), each week on Saturday between 10am until 6pm AND in the event the Mother is scheduled to work on such Saturday, upon 24 hours written (including sms text message) notice to the Father of her availability on the following day (Sunday) then time shall occur on that day between 10am and 6pm on such day;

5. (b) Notwithstanding paragraph 5(a) time with the Mother will occur on Sunday 1 November 2020 in lieu of time on 31 October 2020.

5. (c) Commencing on Tuesday, 22 December 2020, and each Tuesday thereafter, from 10am on Tuesday until 8pm on Wednesday, with such arrangement concluding on 10 January 2021;

5. (d) On Friday 15 January 2021 and Friday 22 January 2021, from 10am until 8pm on the following Sunday;

5. (e) Commencing on the first weekend of school term in 2021 (anticipated to be Friday 5 February 2021) from the conclusion of school on Friday until the commencement of school on Monday;

5. (f) At such further or other times as may be agreed between the parents in writing.

6. For the purpose of changeover pursuant to these Orders, save where such time shall commence and conclude at the children’s school, the mother shall collect the children from the father’s residence at the commencement of time (and during such changeover shall not alight from her vehicle) and the father shall collect the children from the mother’s residence at the conclusion of time spent periods with the mother (and during such time he shall not alight from his vehicle).

7. The mother shall not permit the children to be left in the care of any other person save by written agreement between the parents.

8. Commencing from 2 April 2021, the children spend time with the mother as follows:

8. (a) For C and B:

8. (i) from 10.00am on 5 April 2021 to 6.00pm on 9 April 2021; and

8. (ii) from 10.00am on 15 April 2021 to the commencement of school on 19 April 2021 and each alternate weekend thereafter.

8. (b) For D:

8. (i) from 10.00am on 5 April 2020 to 6.00pm on 8 April 2021; and

8. (ii) from 10.00am on 16 April 2021 to the commencement of school on 19 April 2021 and each alternate weekend thereafter.

8. (c) For C, B and D from 1 July 2021 and each alternate week thereafter from the conclusion of school or 4.00pm on Friday until commencement of school or 9.00am on Monday.

9. The father’s oral application against Ms E Jesberg be and is hereby dismissed.

10. There be leave to the mother to make an oral application that she be solely responsible for the vaccination and immunisation of the children.

11. By not later than 20 November 2020, the father file and serve any application and all evidence including expert evidence upon which he seeks to rely in relation to the mother’s oral application.

12. By not later than 8 February 2021 the mother file and serve any response and all evidence including expert evidence in which she seeks to rely in relation to her oral application for responsibility to immunise and vaccinate the children.

13. By not later than 22 February 2021 the Independent Children's Lawyer file and serve any response and all evidence including expert evidence in which he seeks to rely in relation to the mother’s oral application for responsibility to immunise and vaccinate the children.

14. The hearing of the mother’s oral application be set down for a date to be fixed and on that date there be further consideration of an extension of time for D with the mother to coincide with the time between the mother and the girls.

15. Pursuant to s70NFB, in relation to the penalty for the father as a consequence of the finding as to the mother’s Contravention Application, the father do all acts and things necessary to obtain a mental health plan and to seek and obtain therapy for himself in relation to implementation of these orders and concerns reflected in the reasons for decision this day about conspiracies.

16. The father provide to his therapist copies of Ms FF’s reports including transcript where a report was given orally, the reports and transcripts of Dr DD, the Reasons for Judgment of 17 March and 27 August 2020 and this day together with the sec 11F report by Ms EE and any further material.

17. The father notify the independent children’s lawyer of the name and address of his therapist within 21 days.

IT IS ORDERED:

18. That my reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

19. That pursuant to Sections 65DA(2) and 62B the particulars and 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED:

20. That the minute of orders with tracked changes be marked Exhibit “A” and remain on the Court file.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pieper & Jesberg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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.