Pritchard and Johnston - [2015] FCCA 3336

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRITCHARD & JOHNSTON

[2015] FCCA 3336

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – stay of parenting orders – supervision – mother’s time with child on Mother’s Day and child’s birthday to remain the same except to be supervised – allegations of irrational behaviour – need to protect child from physical or psychological harm.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 68B, 68L

Cases cited:
EMD & FYM [2004] FMCAfam 694
Johnston & Pritchard [2010] FMCAfam 942
Johnston & Pritchard [2011] FMCAfam 1082
Johnston & Pritchard [2013] FCCA 2418
Johnston & Pritchard [2014] FCCA 1996
Johnston & Pritchard [2015] FCCA 1095
L & T [1999] FamCA 1699; (1999) 25 Fam LR 590; FLC 92-875
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant:

MR PRITCHARD

Respondent:

MS JOHNSTON

File Number:

SYC 4591 of 2008

Judgment of:

Judge Scarlett

Hearing date:

9 December 2015

Date of Last Submission:

9 December 2015

Delivered at:

Sydney

Delivered on:

11 December 2015

REPRESENTATION

Solicitor for the Applicant:

Mr Paltos

Solicitors for the Applicant:

Paltos Milevski Family Lawyers

Counsel for the Respondent:

Mr Alexander (direct brief)

ORDERS

UNTIL FURTHER ORDER

Orders (3), 4(a), (4)(d), (4)(e) and (5) made on 12 October 2011 are stayed.
The Mother is to spend supervised time with the child X born (omitted) 2006 as follows:
(a)During the school term:
(i)Each Monday after school with X to be collected from school by Mr D (or another responsible adult agreed by the parties in writing) and returned to the Father’s residence by Mr D (or other responsible adult as agreed) at 7:30 pm on that evening;
(ii)Each alternate Friday from after school until 4:00 pm on the following Saturday with X to be collected from school by Mr D (or another responsible adult agreed by the parties in writing) and returned to the Father’s residence by Mr D (or other responsible adult as agreed).
(b)During school holiday periods as the parties may agree in writing from time to time subject to the availability of an agreed adult supervisor.
(c)From 9:00am to 5:00pm on Mother’s Day if the child is not otherwise in his mother’s care on that day PROVIDED THAT such time must be in the presence of Mr D or another responsible adult agreed by the parties in writing.
(d)From 5:00pm on Christmas Eve until 12:00 noon on Christmas Day 2015 PROVIDED THAT such time must be in the presence of Mr D or another responsible adult agreed by the parties in writing.
(e)For a period of two and a half hours on the child’s birthday from immediately after school with X to be collected from school by Mr D (or another responsible adult agreed by the parties in writing) and returned to the Father’s residence by Mr D (or other responsible adult as agreed).
The mother is restrained by injunction from:
(a)entering or attempting to enter (omitted) Public School from time to…

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 [2015] FCCA 3336
Case: [2015] FCCA 3336
Decision Date: 11 December 2015

CaseChat Overview and Summary

This matter concerned an application by the Mother for a stay of certain orders made on 12 October 2011, and for new orders regarding her supervised time with the child, X. The court also considered injunctions against the Mother and conditions for her undertaking psychiatric assessment and treatment. The proceedings were before Judge Scarlett.

The legal issues before the court included whether to grant a stay of previous orders, the specific terms of supervised time between the Mother and the child, whether to grant injunctions restraining the Mother from attending the child's school or following the child, and the conditions to be imposed on the Mother regarding psychiatric assessment and reporting. The court was also required to determine the independent representation of the child and the process for a child dispute conference.

The court reasoned that the Mother's supervised time with the child should be structured to ensure the child's safety and well-being, specifying times during school terms, school holidays, and particular occasions like Mother's Day and Christmas. Injunctions were granted to prevent the Mother from attending the child's school and following the child, reflecting concerns about her conduct. Crucially, the Mother was ordered to undergo a psychiatric assessment, provide relevant medical records and previous court judgments to the psychiatrist, and comply with treatment recommendations. The psychiatrist was to report on her ability to care for the child and any risk posed. The court also ordered independent legal representation for the child and a child dispute conference.

The court made orders staying certain previous orders, establishing a detailed schedule for the Mother's supervised time with the child, granting injunctions against the Mother, and imposing conditions on her psychiatric assessment and treatment. The court also ordered independent representation for the child and a child dispute conference.

Orders

Orders of the court

UNTIL FURTHER ORDER

Orders (3), 4(a), (4)(d), (4)(e) and (5) made on 12 October 2011 are stayed.

The Mother is to spend supervised time with the child X born (omitted) 2006 as follows:

(a) During the school term:

(i) Each Monday after school with X to be collected from school by Mr D (or another responsible adult agreed by the parties in writing) and returned to the Father’s residence by Mr D (or other responsible adult as agreed) at 7:30 pm on that evening;

(ii) Each alternate Friday from after school until 4:00 pm on the following Saturday with X to be collected from school by Mr D (or another responsible adult agreed by the parties in writing) and returned to the Father’s residence by Mr D (or other responsible adult as agreed).

(b) During school holiday periods as the parties may agree in writing from time to time subject to the availability of an agreed adult supervisor.

(c) From 9:00am to 5:00pm on Mother’s Day if the child is not otherwise in his mother’s care on that day PROVIDED THAT such time must be in the presence of Mr D or another responsible adult agreed by the parties in writing.

(d) From 5:00pm on Christmas Eve until 12:00 noon on Christmas Day 2015 PROVIDED THAT such time must be in the presence of Mr D or another responsible adult agreed by the parties in writing.

(e) For a period of two and a half hours on the child’s birthday from immediately after school with X to be collected from school by Mr D (or another responsible adult agreed by the parties in writing) and returned to the Father’s residence by Mr D (or other responsible adult as agreed).

The mother is restrained by injunction from:

(a) entering or attempting to enter (omitted) Public School from time to time or going within 200 metres of the school;

(b) following the child either from the Father’s residence to school or from the school to the Father’s residence; or

(c) discussing these proceedings with or in the presence or hearing of the child or showing to the child any document connected with these proceedings.

It is a condition of these Orders that the Mother must undertake the following:

(a) subject to such services being available through the public health system attend upon a registered psychiatrist within 14 days of the date of these Orders or such later time as the psychiatrist may appoint and provide the psychiatrist with copies of:

(i) the reports prepared by Dr B for the purposes of earlier proceedings in this Court;

(ii) her prior medical records, including without limitation those held by Dr M and Dr V;

(iii) the Reasons for Judgment of 12 October 2011, 13 February 2013 and 23 July 2014; and

(iv) the affidavit of the father sworn 1 December 2015;

(b) follow all directions and comply with all requirements of the psychiatrist in relation to any psychotherapy and comply with all prescribed medicine regimes recommended by the psychiatrist;

(c) authorise the psychiatrist to provide to the Father information as to her treatment and her compliance with any course of treatment recommended by the psychiatrist including the taking of prescribed medication;

(d) obtain a report from the psychiatrist addressing her ability to care for the child X including if applicable that in the opinion of the psychiatrist she poses no risk of physical or emotional harm whilst the child is in her care;

(e) ensure that the report from the psychiatrist contains an acknowledgement that the psychiatrist has read copies of the reports and medical files and Reasons for Judgment referred to in Order (4)(a) above; and

(f) request the psychiatrist to provide directly to the Father’s legal representative and the Independent Children’s Lawyer when appointed the psychiatrist’s report within seven (7) days of the report being issued.

The interests of the child X born (omitted) 2006 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and Legal Aid NSW is requested to arrange this representation.

Within seven (7) days the parties must forward to Legal Aid NSW at 323 Castlereagh Street Sydney NSW 2000 for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

The Independent Children’s Lawyer when appointed is given leave to issue up to twelve (12) subpoenas without charge.

The Mother is to provide to the Independent Children’s Lawyer and the Father’s lawyers a list of her current treating medical practitioners and any medication which she has been prescribed within seven (7) days of receiving a request in writing from the Independent Children’s Lawyer and the father’s lawyers.

In accordance with the provisions of section 11F of the Family Law Act 1975 the father and mother are to attend a Child Dispute Conference with a Family Consultant at a time and place appointed by the Director of Child Dispute Services at the Sydney Registry of the Court and as provided by section 11C of the said Act the Conference is to be reportable.

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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