RANDELL & ADLER - [2020] FCCA 767

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANDELL & ADLER

[2020] FCCA 767

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D

Applicant:

MR RANDELL

Respondent:

MS ADLER

File Number:

PAC 707 of 2016

Judgment of:

Judge Newbrun

Hearing dates:

10, 11, 12 February 2020

Date of Last Submission:

12 February 2020

Delivered at:

Parramatta

Delivered on:

7 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Cairns of Counsel

Counsel for the Respondent:

Ms Windsor

Counsel for the Independent Children's Lawyer:

Mr Ladopoulos of Counsel

ORDERS

That the mother have sole parental responsibility for the child, X, born … 2014 (the child).
That the Mother:
(a)Notify the father of any proposed decision relating to the long term care and welfare of the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
(b)Take into consideration any views expressed by the Father about the proposed decision.
That the child live with the Mother.
That subject to Orders 5 and 6 below, the child spend time with the Father as provided for in Order 3 of the Father’s Second Further Amended Initiating Application (the Father’s Proposed Orders), except that the supervised time provided for in Order 3(a) of the Father’s Proposed Orders shall be supervised by Town B Children’s Contact Centre or, if the Centre is unable to facilitate such supervision, by an accredited professional supervising agency nominated by the Father.
That the child’s time with the Father (including supervised time) shall not commence unless the Father has:
(a)Completed an Anger Management Course of at least six (6) weeks duration; and
(b)Provided a copy of a certificate of completion of such course to
a. the Mother; and
b. the Contact Centre
That the child shall not commence unsupervised time with the Father unless the Father has:
(a)Provided the Mother with a letter from his treating psychologist or psychiatrist (as provided for in Order 7 below) confirming that he has:
a.   Consistently attended sessions with the treating psychologist/psychiatrist as recommended by that psychologist/psychiatrist;
b.   Followed any recommendations made by the psychologist/psychiatrist; and
c.   In the event that the psychologist/psychiatrist considers that further sessions are no longer considered necessary, confirming that that is the case.
That the Father forthwith approach his General Practitioner for the purpose of obtaining a Mental Health Plan and referral to a psychologist or psychiatrist for the purpose of engaging in treatment/therapy and receiving assistance for the matters identified in paragraphs 8, 9 and 10 of the recommendations contained in the Expert Report of Dr A dated 7 July 2018.
That the Father engage with the psychologist/psychiatrist referred to in the preceding Order for the purposes set out in that Order.
That the Father have leave to provide a copy of the Expert Report of Dr A dated 7 July 2018 to his General Practitioner and to his treating psychologists…

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 RANDELL & ADLER

Details

AGLC: Randell and Adler [2020] FCCA 767
Case: [2020] FCCA 767
Decision Date: 7 April 2020

CaseChat Overview and Summary

In the matter of RANDELL & ADLER, heard by Judge Newbrun, the dispute concerned parenting orders for a child born in 2014. The proceedings involved applications by both the mother and the father regarding the long-term care, welfare, and time spent with the child.

The court was required to determine the best interests of the child in relation to parental responsibility, living arrangements, and the nature and extent of the child's time with each parent. Key issues included the conditions under which the father could resume spending time with the child, the necessity for both parents to engage in psychological treatment, and the arrangements for supervised contact. The court also considered orders relating to communication between the parents, notification of significant events concerning the child, and prohibitions against denigration and physical punishment.

Judge Newbrun made orders that the mother have sole parental responsibility and that the child live with the mother. The father was to be notified of proposed long-term decisions regarding the child's care and welfare, with his views to be considered. The child was to spend time with the father subject to specific conditions, including the completion of an anger management course and a letter from his treating psychologist or psychiatrist confirming engagement with therapy and adherence to recommendations. Both parents were ordered to obtain mental health plans and engage with psychologists or psychiatrists to address issues identified in an expert report, and their treating professionals were to confer regarding a child psychologist to assist in informing the child of his paternity. Supervised contact was to be facilitated by a specified contact centre, with both parents to pay associated fees and comply with the centre's rules. Further orders addressed communication protocols, notification of residence changes, prohibitions on denigration and substance use while the child is in care, and the use of physical punishment.

Orders

Orders of the court

That the mother have sole parental responsibility for the child, X, born … 2014 (the child).

That the Mother:

(a) Notify the father of any proposed decision relating to the long term care and welfare of the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and

(b) Take into consideration any views expressed by the Father about the proposed decision.

That the child live with the Mother.

That subject to Orders 5 and 6 below, the child spend time with the Father as provided for in Order 3 of the Father’s Second Further Amended Initiating Application (the Father’s Proposed Orders), except that the supervised time provided for in Order 3(a) of the Father’s Proposed Orders shall be supervised by Town B Children’s Contact Centre or, if the Centre is unable to facilitate such supervision, by an accredited professional supervising agency nominated by the Father.

That the child’s time with the Father (including supervised time) shall not commence unless the Father has:

(a) Completed an Anger Management Course of at least six (6) weeks duration; and

(b) Provided a copy of a certificate of completion of such course to

a. the Mother; and

b. the Contact Centre

That the child shall not commence unsupervised time with the Father unless the Father has:

(a) Provided the Mother with a letter from his treating psychologist or psychiatrist (as provided for in Order 7 below) confirming that he has:

a. Consistently attended sessions with the treating psychologist/psychiatrist as recommended by that psychologist/psychiatrist;

b. Followed any recommendations made by the psychologist/psychiatrist; and

c. In the event that the psychologist/psychiatrist considers that further sessions are no longer considered necessary, confirming that that is the case.

That the Father forthwith approach his General Practitioner for the purpose of obtaining a Mental Health Plan and referral to a psychologist or psychiatrist for the purpose of engaging in treatment/therapy and receiving assistance for the matters identified in paragraphs 8, 9 and 10 of the recommendations contained in the Expert Report of Dr A dated 7 July 2018.

That the Father engage with the psychologist/psychiatrist referred to in the preceding Order for the purposes set out in that Order.

That the Father have leave to provide a copy of the Expert Report of Dr A dated 7 July 2018 to his General Practitioner and to his treating psychologists and/or psychiatrists.

10.

That the Mother forthwith approach her General Practitioner for the purposes of obtaining a Mental Health Plan and referral to a psychologist or psychiatrist for the purpose of engaging in treatment/therapy and receiving assistance for the matters identified in paragraphs 7, 9 and 10 of the recommendations contained in the Expert Report of Dr A dated 7 July 2018.

11.

That the Mother engage with the psychologist or psychiatrist referred to in the preceding Order for that purposes set out in that Order.

12.

That the Mother have leave to provide a copy of the Expert Report of Dr A dated 7 July 2018 to her General Practitioner and to her treating psychologists and/or psychiatrists.

(12A) That the mother and the father each request their respective psychologists/psychiatrists, as referred to in orders 8 and 11 above, to confer for the purposes of jointly recommending a child psychologist to assist the mother and the father with informing the child of his paternity.

13.

That the Mother and the Father forthwith contact and the Town B Children’s Contact Centre and:

(a) Arrange an appointment for assessment for suitability;

(b) Attend the assessment;

(d) Comply with all reasonable rules of the Centre;

(e) Comply with all reasonable request or directions of the staff of the Centre;

(f) The parties shall each pay the fees nominated by the Centre for the provision of its service.

14.

That the Father shall ensure that the Mother is notified as soon as practicable if, while in his care:

(a) The child is admitted to hospital; and or/

(b) The child is involved in a medical emergency

15.

That the Mother shall ensure that the Father is notified as soon as practicable if, while in her care:

(a) The child is admitted to hospital; and/or

(b) The child is involved in a medical emergency

16.

That these Orders authorise any school which the child is attending from time to time to provide both the Mother and the Father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to the child.

17.

That the Mother and the Father:

(a) Forthwith advise each other of:

a. An email address which can be used by each of them to communicate about matters relating to the child; and

b. A telephone contact number to be used to only for emergencies in respect of the child; and

(b) Notify each other of any change to such email address and/or telephone contact numbers, such notification to be made in writing and within three (3) days of any change.

18.

That the Mother and the Father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.

19.

Neither party shall denigrate the other party to or in the presence of the child and shall take all reasonable steps to ensure that no other person denigrates the other party to or in the presence of the child.

20.

The parties are restrained from consuming any illegal drugs or alcohol whilst the child is in their care.

21.

Each party is restrained from using any physical punishment upon the child.

22.

Each party shall continue to follow all reasonable directions of their medical, psychiatric and psychological consultants and engage in such therapies as may be recommended by such consultants.

23.

The parties shall forthwith advise the other party of any illness or injury suffered by the child which requires medical treatment whilst the child is in their care.

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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