Pike and Skilton - [2017] FCCA 2466

FEDERAL CIRCUIT COURT OF AUSTRALIA

PIKE & SKILTON

[2017] FCCA 2466

Catchwords:
FAMILY LAW – Parenting – where the mother alleges both domestic violence and sexual abuse of the three children of the relationship by the father – where the father denies all such allegations and contends that it is not a case of a mistaken belief held by the mother but rather fabrication of false allegations – where it is necessary to make specific findings as to the allegations – where significant expert evidence was available of a medical, psychiatric and social science nature – where the identified concerns give rise to incongruities in the allegations by the mother and subsequent behaviours – where the identified behaviours of the children when in contact with the father are entirely different to the suggested indications to the mother – where a finding is made that the allegations relating to the father’s behaviours are false and that the mother has knowingly fabricated such allegations – where orders in relation to parenting to provide for the “best interests” of the children require a radical change in care arrangements – where such orders and changes are supported by the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CA, 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE

Cases cited:
Lansa & Clovelly [2010] FamCA 80
Heath & Hemming (No 2) [2011] FamCA 749
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell & Chappell (2008) FLC 93-382
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439
MRR v GR (2010) 240 CLR 461

Applicant:

MR PIKE

Respondent:

MS SKILTON

File Number:

BRC 5173 of 2016

Judgment of:

Judge Coker

Hearing dates:

22, 23, 24 February and 27, 28 April 2017

Date of Last Submission:

28 April 2017

Delivered at:

Townsville

Delivered on:

13 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr Linklater-Steele

Solicitors for the Applicant:

Carroll Fairon Solicitors

Counsel for the Respondent:

Ms Dart

Solicitors for the Respondent:	Legal Aid Queensland
Counsel for the Independent Children’s Lawyer:	Mr George

Independent Children’s Lawyer:

Jenny Boulton Solicitor

ORDERS

Parental Responsibility

That the Father shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) ("the Act")) in respect of the children, X born (omitted) 2008 (“X”) and Y born (omitted) 2011 (“Y”) and Z born (omitted) 2011 (“Z”) (collectively “the children”) save that the Father shall, prior to making the sole ultimate decision about any such issue:
(a) Advise the Mother in writing of the decision intended to be made;
(b) Seek the written response of the mother in relation thereto;
(c) Consider, by reference to the best interests of the children, any such written response prior to making any such decision; and
(d) Advise the Mother in writing as soon as reasonably practicable of his ultimate…

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 Pike and Skilton

Details

AGLC: Pike and Skilton [2017] FCCA 2466
Case: [2017] FCCA 2466
Decision Date: 13 October 2017

CaseChat Overview and Summary

This case involved an application concerning parental responsibility and the living arrangements for three children, X, Y, and Z. The proceedings were before Judge Coker.

The court was required to determine the extent of parental responsibility for major long-term issues, where the children would live, and the nature and supervision of the children's time spent with the Mother. Additionally, the court needed to address provisions for family and personal counselling, the communication protocols between the parents, and arrangements for overseas travel. The court also considered injunctions to be placed upon the Mother and the process for future dispute resolution.

Judge Coker ordered that the Father would have sole parental responsibility for all major long-term issues concerning the children, subject to a process of consultation with the Mother. The children were ordered to live with the Father. The Mother's time with the children was to be supervised, initially for three hours each alternate weekend, with provisions for increasing this time and the nature of supervision contingent on the Mother engaging with mental health professionals and reports confirming the children's safety. The orders also detailed specific arrangements for special days, including Mother's Day, birthdays, and Christmas, and mandated joint attendance at psychological assessments to report on the children's living arrangements and the Mother's progress. Further orders addressed the children's ongoing counselling, communication between parents, and restrictions on the Mother's contact with the children and certain individuals.

The court also made orders regarding overseas travel, requiring the Father to provide notice and details to the Mother, and restraining the Mother from overseas travel with the children during supervised time. A process for family dispute resolution was established for significant changes to living arrangements or disputes regarding the terms of the orders. The Independent Children's Lawyer was discharged, and parties were granted liberty to apply within 28 days for clarification of the orders and in respect of costs.

Orders

Orders of the court

Parental Responsibility

That the Father shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) ("the Act")) in respect of the children, X born (omitted) 2008 (“X”) and Y born (omitted) 2011 (“Y”) and Z born (omitted) 2011 (“Z”) (collectively “the children”) save that the Father shall, prior to making the sole ultimate decision about any such issue:

(a) Advise the Mother in writing of the decision intended to be made;

(b) Seek the written response of the mother in relation thereto;

(c) Consider, by reference to the best interests of the children, any such written response prior to making any such decision; and

(d) Advise the Mother in writing as soon as reasonably practicable of his ultimate decision.

Live with

That the children live with the Father.

Spending time

That the children spend time with the Mother for three (3) hours each alternate weekend on a Saturday, unless otherwise agreed, with such time to be supervised at (omitted) or by any other such professional supervision provider as may be nominated by the Father.

That upon the Mother providing to the Father documentation confirming that she has engaged with a mental health expert, such supervision may also be provided by the Maternal Uncle, Mr P, provided that Mr P confirms in writing that he fully understands and will properly attend to the supervisory role that he is undertaking.

That upon the Mother providing to the Father a report from a mental health expert, which confirms that the children are not at risk of any harm with the Mother, then such time as may be spent by the Mother with the children shall increase up to seven (7) hours in total as agreed between the Mother and the Father and failing agreement, between the hours of 9.00am and 4.00pm each alternate Saturday, with such time to be supervised by the Maternal Uncle or such other person as may be agreed between the Father and the Mother.

That during such periods that the Mother is spending supervised time with the children, the Mother is at liberty to attend at the children’s schools for the purpose of attending activities at which parents ordinarily attend, provided that the Mother is:

(a) Accompanied by the Maternal Uncle or such other person as may be agreed between the Father and the Mother; and

(b) That such attendances shall not be more regular than on one occasion per calendar month.

That the children shall spend time with the Mother on special days as agreed between the Mother and Father in writing and failing agreement as follows:

(a) On Mother’s Day at times to be agreed and failing agreement from 9.00am until 4.00pm with such time to be supervised by the Maternal Uncle or other person as agreed between the Mother and the Father;

(b) On the Mother’s birthday at times to be agreed and failing agreement from after school until 6.00pm should the birthday fall on a school day and from 9.00am until 4.00pm should the birthday fall on a weekend with such time to be supervised by the Maternal Uncle or other person as agreed between the Mother and the Father;

(c) On the children’s birthdays at times to be agreed and failing agreement from after school until 6.00pm should the birthday fall on a school day and from 9.00am until 4.00pm should the birthday fall on a weekend with such time to be supervised by the Maternal Uncle or other person as agreed between the Mother and the Father;

(d) On Christmas Day in even numbered years at times to be agreed and failing agreement from 9.00am until 4.00pm with such time to be supervised by the Maternal Uncle or other person as agreed between the Mother and the Father; and

(e) On Christmas Day in odd numbered years the Mother’s time with the children shall be suspended on Christmas Day and in substitution thereof the Mother may spend time with the children at times to be agreed and failing agreement from 9.00am until 4.00pm on 27 December with such time to be supervised by the Maternal Uncle or other person as agreed between the Mother and the Father.

That on or after the first day of January 2019, the parties are to jointly arrange to attend upon Mr S or such other psychologist/social worker as agreed in writing between the parties so as to obtain a report addressing the changes in the children’s living arrangements and the Mother’s progress with any counselling and/or therapy engaged in by the Mother and to provide recommendations as to further developments with the Mother’s opportunity to spend time with the children.

That the parties are to share equally the costs associated with the preparation of any such report.

Family and Personal Counselling and Therapy

10.

That the Father facilitate the children’s continued attendance upon Ms P or other counsellor as may be recommended by Ms P and that the Father be responsible for the costs associated with such counselling and that unless otherwise recommended by the counsellor, that such counselling continue during all periods that the children are spending supervised time with the Mother.

11.

That Ms P or such other counsellor as may be recommended by Ms P is hereby authorised to communicate with any professional supervisor for the purposes of providing any and all information relevant to the Mother’s time to be spent with the children.

12.

That both the Mother and the Father attend for psychological counselling and continue such counselling to coincide with any period that the children are spending supervised time with the Mother and thereafter to continue such treatment as may be recommended by their treating psychologist or mental health practitioner.

13.

That the Father is authorised by these orders to consult with any psychologist or mental health expert consulted by the Mother for the purposes of satisfying himself that the Mother continues to properly engage in any counselling and/or therapy as may be recommended.

14.

That both parents have leave to make available to their respective treating psychologist or mental health practitioner copies of the reports of Dr D and Mr S, as well as copies of the reasons for judgment and the orders of the Court.

Injunctions

15.

That the Mother or any person on behalf of the Mother be restrained from:

(a) Contacting the children other than pursuant to the terms of these orders;

(b) Attending at or near the children’s schools or the children’s home other than pursuant to the terms of these orders;

(c) Bringing the children into contact with the Maternal Grandmother, Ms A, other than in the presence of the Maternal Uncle and with the knowledge and consent of the Father in writing.

16.

That during the time the children are with either parent, that parent shall:

(a) Respect the privacy of the other parent and not question the children about the personal life of the other parent;

(b) Speak of and to the other parent respectfully;

(c) Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and

(d) Not discuss the proceedings, the allegations raised in the proceedings or how the children came to be living with the father.

General

17.

The Father is authorised pursuant to the terms of these orders to provide copies of the orders to the principal of any school attended by any of the children.

18.

That the Mother and the Father shall:

(a) Keep the other parent informed at all times of their residential address, email address and contact telephone number;

(b) Keep the other parent informed of the names and business addresses of any treating medical or other health practitioner who provides treatment for the children and authorises such practitioner to provide that parent with all information that they are lawfully able to provide about the children.

19.

That these orders provide an authority to any school or extra-curricular provider of services to the children to give each parent information about the children’s progress and to enable each parent to obtain copies of reports, photographs, certificates and/or awards as may be received by the children with the costs of providing such documentation to be at the expense of the party requesting such information.

20.

That other than in circumstances of emergency the parents are to communicate with each other by text message or email and such communication is to relate only to issues regarding the children.

Overseas Travel

21.

That the Father shall be at liberty to travel overseas with the children to countries who are signatories to the Hague Convention on the Civil Aspects of International Child Abduction and for that purpose the following orders shall apply:

(a) The travelling parent shall provide at least three (3) months notice to the non-travelling parent with such notice containing details of proposed itinerary, countries of travel and timing of travel;

(b) Such travel shall occur during the travelling parents nominated school holiday period, unless agreement between the parents otherwise;

(i) A copy of the final itinerary including departure and return dates and times;

(ii) A copy of the return ticket if available;

(iii) A contact telephone number for the travelling parent and the children; and

(iv) The addresses at which the children will be predominantly based.

(d) In the event either parent is to travel outside their allotted school holiday time with the children the following provisions shall apply:

(i) Either parent is at liberty to take up to fourteen (14) days travel with the children;

(ii) Such travel shall not occur more than once a year; and

(iii) Such travel shall not occur during school time unless agreed by both parents in writing and for the purpose of the same either parent will not unreasonably decline such travel.

(e) During the trip the travelling parent shall arrange a telephone call between the children and the non-travelling parent on at least one occasion per week.

22.

That the passports for the children are to be held by the Father and only to be released and/or used in accordance with these orders unless otherwise agreed in writing between the parents.

23.

That the Mother is restrained from travelling overseas with the child during the period where the children are spending supervised time with the Mother.

Family Dispute Resolution

24.

That in the circumstances where either parent seeks to make significant changes to their living arrangements such that these orders are no longer practical, the parties shall first attend family dispute resolution.

25.

That the process to be used for resolving disputes about the term or operation of these orders shall be as follows:

(a) They shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;

(b) They shall pay the costs of the Family Dispute Resolution Practitioner equally;

(c) In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;

(d) The father shall choose one of the listed practitioners within seven (7) days of receipt of the list; and

(e) If the Father fails to choose then the Mother may choose.

Independent Children’s Lawyer

26.

That the Independent Children’s Lawyer is to advise the children or make appropriate arrangements for the children to be advised of the terms of these orders and thereafter, the Independent Children’s Lawyer is discharged.

27.

That each party be granted liberty to apply within 28 days of the date of this order in relation to any point of clarification of the orders and in respect of costs.

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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