Pritchard and Johnston - [2017] FamCA 1056

FAMILY COURT OF AUSTRALIA

PRITCHARD & JOHNSTON

[2017] FamCA 1056

FAMILY LAW – CHILDREN – With whom a child lives – Where father seeks orders for sole parental responsibility and for the child to live with him – Where father seeks orders for the child to spend only supervised time with the mother – Where father seeks for the mother’s time with the child to be conditional upon her being psychiatrically assessed and compliant with directions of her treating mental health professional – Where mother seeks equal shared parental responsibility, and for the child to live with the father and spend alternate weekends with her – Whether the mother poses an unacceptable risk of harm to the child – Where the mother poses a risk of emotional harm to the child arising from her mental health – Where risk can be adequately mitigated by supervision and conditions on her time with the child – Where child wishes to spend more time with the mother – Where parties’ relationship would not support equal shared parental responsibility – Where it is in the child’s best interests for the father to have sole parental responsibility – Where child to live with the father and spend supervised time with the mother each alternate weekend – Where mother’s time with the child is conditional upon her engaging in treatment for her mental health – Where orders made for various restraints on the mother, including restraining her from publishing on the internet any derogatory comments of the father or father’s household.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Johnston & Pritchard [2011] FMCAfam 1082
Johnston & Pritchard [2013] FCCA 2418
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170

APPLICANT:

Mr Pritchard

RESPONDENT:

Ms Johnston

INDEPENDENT CHILDREN’S LAWYER:

Mr Butters

FILE NUMBER:

SYC

4591

2008

DATE DELIVERED:

19 December 2017

PLACE DELIVERED:

Cairns

PLACE HEARD:

Sydney

JUDGMENT OF:

Tree J

HEARING DATE:

16, 17, 18 and 19 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies SC

SOLICITORS FOR THE APPLICANT:

Pearson Emerson Meyer Family Lawyers

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Mr Guterres

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

K D Holmes Solicitors

Orders

All previous parenting orders made in relation to X born … 2006 (“the child”) except for order 2 of orders made by Judge Coker on 23 July 2014, are hereby discharged.

Parenting responsibility

Subject to order 3, the father shall have sole parental responsibility for all major long-term decisions for the child (including but not limited to the high school the child is to attend).
The father shall:
a.Notify the…

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 Pritchard and Johnston

Details

AGLC: Pritchard and Johnston [2017] FamCA 1056
Case: [2017] FamCA 1056
Decision Date: 19 December 2017

CaseChat Overview and Summary

This case concerned parenting orders made by Tree J in relation to a child born in 2006. The dispute involved the father and mother, with the court discharging previous parenting orders, save for one made by Judge Coker on 23 July 2014.

The court was required to determine a range of issues concerning the child's welfare and development. These included who should have parental responsibility for major long-term decisions, where the child should live, and the arrangements for the child to spend time with each parent. The court also had to consider conditions relating to the mother's mental health treatment, provisions for overseas travel with the child, and various restraints and injunctions to be imposed on the parties.

Tree J's reasoning led to orders that the father would have sole parental responsibility for major long-term decisions, with specific notification and consideration requirements for the mother. The child was ordered to live with the father, and detailed provisions were made for the child to spend time with the mother, subject to supervision by a nominated adult. The mother's time with the child was made conditional upon her engaging in mental health treatment, with specific reporting requirements to the father. The father was permitted to travel overseas with the child under certain conditions, and the mother was restrained from various actions, including approaching the father's residence or the child's school, consuming alcohol when the child is in her care, and publishing derogatory statements on social media. The court also made orders regarding counselling for the child and mutual restraints on denigrating each other in the child's presence.

Orders

Orders of the court

All previous parenting orders made in relation to X born … 2006 (“the child”) except for order 2 of orders made by Judge Coker on 23 July 2014, are hereby discharged.

Parenting responsibility

Subject to order 3, the father shall have sole parental responsibility for all major long-term decisions for the child (including but not limited to the high school the child is to attend).

The father shall:

a. Notify the mother in writing via email of any proposed decision relating to the long-term care, welfare and development of the child including the reasons for the proposal, such notification to be given at least one month before a final decision is made, other than in the case of an emergency;

b. Take into consideration any views expressed by the mother (to be communicated in writing to an email address nominated by the father) about the proposed decision; and

c. Inform the mother of his decision in writing.

Live with

The child shall live with the father.

Time

The child shall spend time with the mother as agreed between the parties and failing agreement as follows:

a. During school term:

i. Each alternate weekend from after school Friday (or 3.00 pm on a non-school day) until 6.00pm on the following Sunday; and

ii. Each alternate Tuesday from after school (or 3.00 pm on a non-school day) until 7.30pm.

b. In the event the mother lives within a 10km radius of the child’s school, the child’s time with mother during school term shall be:

i. Each alternate weekend from after school Friday (or 3.00 pm on a non-school day) until before school the following Monday; and

ii. Each alternate Tuesday from after school (or 3.00 pm on a non-school day) until before school the following Wednesday.

c. During School Holiday periods at such times as may be agreed and failing agreement at times in accordance with order 5a.

d. From 2.00 pm on Christmas Day until 4.00 pm Boxing Day

e. From 9am until 5pm on Mother’s Day

f. On the child’s birthday for two hours if falling on a school day and four hours if falling on a non-school day.

The mother’s time with the child pursuant to these orders shall be supervised by Mr D or other responsible adult as agreed between the mother and father, in writing, and with the father not to unreasonably withhold his consent.

For the purposes of these orders, supervision shall mean that the supervisor is to remain substantially present during, and to monitor, the mother’s time with the child.

Changeovers shall take place either at the child’s school, if time is expressed to start or cease after of before school, or otherwise at a place nominated by the father.

The mother’s time with the child is conditional upon Mr D or any other supervisor providing to the Court, within 7 days of the making of these orders, or accepting the role of supervisor, a written undertaking that:

a. he will supervise the mother’s time with the child;

b. he will inform the father in the event he is unavailable to supervise the mother’s time;

c. he will be substantially present during periods the mother spends with the child and will monitor that time to ensure the child is not exposed to any risk of harm from the mother including by reason of any substance/alcohol abuse or arising from the mother’s mental health or the mother’s interactions with the child;

d. he will take necessary steps in the event that he considers the mother is exposing the child to any risk of harm including removing the child from the mother’s care;

e. he will inform the father in the event that he becomes concerned the mother may expose or has exposed the child to risk of harm and in particular he will inform the father if he becomes aware of any deterioration in the mother’s mental health, any hospitalisation of the mother, any alcohol abuse or any failure by the mother to comply with court orders.

10.

The mother shall comply with all directions relating to the mother’s interactions with the child, of any person supervising her time with the child.

11.

In the event that Mr D (or any other supervisor) is unable or unwilling to supervise the mother’s time or, pursuant to order 9e, Mr D or the other supervisor informs the father that he is concerned the mother may expose or has exposed the child to risk of harm then the father is at liberty to temporarily suspend the mother’s time until such time as Mr D or the other supervisor becomes available to resume supervision, or Mr D or the other supervisor advises the father that his concerns have abated.

12.

Notwithstanding any other order, the father shall be at liberty to facilitate the child spending unsupervised time with the mother at the father’s discretion.

13.

Notwithstanding any other order the father shall spend time with the child:

a. From 9am to 5pm Father’s Day; and

b. From 9am to 5pm on the father’s birthday.

Mother’s mental health treatment

14.

The mother’s time with the child shall be conditional upon the mother engaging in treatment for her mental health and for this purpose the mother shall:

a. Continue to attend upon her psychiatrist, currently Dr S, and the local area health mental health team for such time and at such intervals as they deem necessary;

b. Comply with all recommendations made in relation to her treatment including: attending at all scheduled appointments, complying with prescribed medication, attending upon any other person, program or service as may be recommended.

15.

In the event that Dr S is unable, unwilling or unavailable to continue to treat the mother, the mother shall:

a. inform the father in writing that she is no longer receiving treatment from Dr S, including the reasons the treatment has ceased;

b. obtain from her GP at the Suburb T Family Medical Practice a referral to a qualified psychiatrist nominated by the GP;

c. attend the first available appointment with the psychiatrist to whom she has been referred for treatment;

d. inform the father in writing of the contact details of the new psychiatrist.

16.

Within 14 days of a written request from the father, the mother shall obtain and provide to the father a written report from her treating psychiatrist and such report is to address:

a. the dates of any consultation the mother has attended (including any consultations not attended);

b. the mother’s engagement and compliance with treatment;

c. an opinion on the status of the mother’s mental health including whether within the preceding 6 months there has been any deterioration/improvement in the mother’s mental health and whether the mother has been hospitalised for any mental health condition.

17.

The father shall not make more than one such request for a report within any six month period and the father shall be responsible for the reasonable costs.

18.

In the event the mother fails to obtain and provide to the father a report in accordance with these orders, the father shall be at liberty to suspend or reduce the time the mother is to spend with the child until such time as the report is received.

19.

The ICL shall provide to the mother’s GP at the Suburb T Family Medical Centre and to Dr S a copy of these orders and the Court’s reasons for judgment and these orders shall authorise Dr S (and any person subsequently treating the mother) to forward the judgment and the orders to any other person who may also be providing the mother with treatment for any mental health condition.

20.

The mother shall forthwith provide to and otherwise ensure that a copy for these orders and reasons for judgment are provided to any person who is providing the mother with treatment or her mental health.

Overseas travel

21.

Pursuant to section 65Y(2) of the Act the father is permitted to travel overseas with the child on one occasion every two years for a period of up to six weeks.

22.

For the purpose of any overseas travel pursuant to Order 21 the following conditions shall apply:

a. The father is restrained from travelling with the child to any country that is not a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, other than during periods of transit of no longer than 48 hours;

b. The father shall provide the mother 60 days’ written notice of proposed travel including dates and countries to be visited;

c. The father shall provide to the mother not less than 14 days before travel, an itinerary of travel including copy of return airline tickets and contact details whilst abroad; and

d. The mother’s time with the child is suspended during the period the child is overseas pursuant to these orders.

e. The father shall facilitate reasonable communication between the child and the mother, by telephone or Skype, whilst the child is overseas.

23.

The father is authorised to apply to renew or obtain a passport for the child without the consent of the mother.

24.

The father shall retain control of the child’s passport.

Restraints/injunctions

25.

The mother is restrained by injunction from:

a. Approaching within 200 metres or entering upon the father’s place residence without the written permission of the father;

b. Approaching within 200 metres or entering upon the child’s school except as agreed with the father and otherwise permitted by the school;

c. Consuming alcohol whilst the child is in her care or within the preceding 24 hours prior to having care of the child;

d. Taking the child to any medical practitioners without the father’s knowledge and written consent except in the case of a medical emergency in which case the mother shall immediately inform the father of details of where the child is receiving treatment.

e. Publishing on Facebook, twitter, Myspace or any other social media website or internet generally any derogatory statements concerning the father and/or Ms P, and/or Y, and/or Z and within 24 hours of these orders the mother must remove any such posts;

f. Telephoning the child during school hours.

26.

The father shall facilitate the child’s attendance at counselling with the E Service until such time as the E Service deems necessary and the parties shall follow the recommendations made by the E Service including with respect to the child’s engagement with COPMI.

27.

The ICL shall provide to the child’s counsellor at the E Service a copy of the orders and reasons for judgment.

28.

The party with the care of the child shall notify the other of any medical emergency, illness or injury suffered by the child that may warrant treatment by a third party.

29.

Each party is restrained from denigrating the other in the presence of or within hearing of the child and from permitting the child to remain in the presence or hearing of a third party denigrating the other party.

30.

Each party is restrained from discussing these proceedings with the child.

31.

Each party shall provide keep the other party informed of any change in residential address, telephone number, and the mother shall in addition ensure the father is informed of contact details of Mr D.

32.

Upon the making of these orders the father shall arrange for the child to attend upon the ICL at the first available appointment for the purposes of the ICL explaining to the child the nature and effect of these orders.

33.

The Independent Children’s Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

34.

Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

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

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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