Seabrook and Seabrook - [2018] FCCA 2311

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEABROOK & SEABROOK

[2018] FCCA 2311

Catchwords:
FAMILY LAW – Parenting – change of residence sought by the father – two children, aged 15 and 13 – strong views – views influenced by mother – children not spending time with the father – mother has a personality disorder – consideration of risk of psychological and psychiatric harm to the children of living with the mother or of changing residence to the father – psychological treatment of the mother ordered – no change of residence.

Legislation:

Family Law Act 1975, ss. 4, 60B, 60CA, 60CC, 61DA, 65DAA, 65Y, 67ZD

Cases cited:

H v W (1995) FLC ¶92-598
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC ¶93-405
R and R: Children’s Wishes (2000) FLC ¶93-000
R v R (Children’s wishes) (2002) FLC ¶93-108

Applicant:

MR SEABROOK

Respondent:

MS SEABROOK

File Number:

MLC 5078 of 2016

Judgment of:

Judge Baker

Hearing date:

17-20 July 2018

Date of Last Submission:

20 July 2018

Delivered at:

Hobart

Delivered on:

21 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Sweeney of Counsel

Solicitors for the Applicant:

Robinson Gill

Counsel for the Respondent:

Mr Werner of Counsel

Solicitors for the Respondent:

CBD Family Lawyers

Counsel for the Independent Children’s Lawyer

Solicitors for the Independent Children’s Lawyer

Victoria Legal Aid

ORDERS

THE COURT ORDERS THAT:

The mother and father have equal shared parental responsibility for the children [X] born 2002 and [Y] born 2004 (“the children”).
The children live with the mother.
The children spend time with and communicate with the father in accordance with their wishes.
The mother and father keep the other advised of their residential addresses, mobile telephone numbers and email addresses.
The mother keep each of the children advised of the father’s residential address, mobile telephone number and email address.
The mother keep the father advised of each of the children’s mobile telephone numbers.
The father be permitted to send text messages to the mobile telephone numbers of each of the children and letters, cards and gifts to each of the children to their residential address.
The father be and is hereby authorised to communicate with any medical practitioner, specialist and mental health practitioner upon whom each of the children may attend from time to time, the mother keep the father advised of the names and contact details of such professionals.
The father be and is hereby authorised to communicate with the Principal, teachers and other professionals at the school(s) including the school counsellor at which the children attend and receive copies of all documents ordinarily provided to parents including school notices, reports and photograph order forms.
The father be at liberty to provide a copy of these orders to any such person referred to in Orders 8 and 9 to facilitate such communications.
The father be at liberty to attend any school function to which parents are ordinarily invited and any extra-curricular activity or sporting activity in which the children or either…

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 Seabrook and Seabrook

Details

AGLC: Seabrook and Seabrook [2018] FCCA 2311
Case: [2018] FCCA 2311
Decision Date: 21 August 2018

CaseChat Overview and Summary

This matter concerned an application by the mother and father for final orders regarding their two children, born in 2002 and 2004. The dispute centred on parenting arrangements following the breakdown of the parents' relationship.

The court was required to determine the nature of parental responsibility, where the children would live, and the extent of time the children would spend with and communicate with each parent. Further issues included the practical arrangements for communication and information sharing between the parents regarding the children's health, education, and general welfare, as well as provisions for the father's involvement in the children's lives and specific therapeutic requirements for the mother.

The court made orders for equal shared parental responsibility, with the children to live with the mother. The children were to spend time with and communicate with the father in accordance with their wishes. The orders detailed extensive provisions for communication and information exchange between the parents, including addresses, contact details, and access to school and medical professionals. Notably, the mother was ordered to undertake therapy to address a diagnosed personality disorder and to promote a relationship between the children and their father, with reports to be provided to the father. The father was also permitted to use documents from the proceedings in defence of any intervention order applications.

Orders

Orders of the court

THE COURT ORDERS THAT:

The mother and father have equal shared parental responsibility for the children [X] born 2002 and [Y] born 2004 (“the children”).

The children live with the mother.

The children spend time with and communicate with the father in accordance with their wishes.

The mother and father keep the other advised of their residential addresses, mobile telephone numbers and email addresses.

The mother keep each of the children advised of the father’s residential address, mobile telephone number and email address.

The mother keep the father advised of each of the children’s mobile telephone numbers.

The father be permitted to send text messages to the mobile telephone numbers of each of the children and letters, cards and gifts to each of the children to their residential address.

The father be and is hereby authorised to communicate with any medical practitioner, specialist and mental health practitioner upon whom each of the children may attend from time to time, the mother keep the father advised of the names and contact details of such professionals.

The father be and is hereby authorised to communicate with the Principal, teachers and other professionals at the school(s) including the school counsellor at which the children attend and receive copies of all documents ordinarily provided to parents including school notices, reports and photograph order forms.

10.

The father be at liberty to provide a copy of these orders to any such person referred to in Orders 8 and 9 to facilitate such communications.

11.

The father be at liberty to attend any school function to which parents are ordinarily invited and any extra-curricular activity or sporting activity in which the children or either of them are engaged when the children or either of them make a written request (text/email) to the father for him to attend.

12.

The father be at liberty to attend parent/teacher meetings at the children’s school and the father shall advise the mother of the date and time when he will attend.

13.

The mother notify the father in writing 14 days prior of any overseas travel of the children or either of them of the travel dates and whereabouts of the travel.

14.

The mother make the children available to meet with the ICL for the purpose of explaining these orders.

15.

The father be at liberty to produce to the Magistrates’ Court of Victoria copies of any and all documents or evidence produced in these proceedings in defence of any application made by the mother and/or the children for an Intervention Order under the Crimes (Family Violence) Act or any like legislation.

16.

The mother, at her expense, forthwith undertake therapy with a qualified health professional nominated by Dr T, Psychiatrist (‘the nominated health professional’) for the purposes of addressing and treating the personality disorder identified by Dr T in his report dated 1 December 2016, and for the purposes of enabling her to gain insight into her past behaviour; and for the purpose of her being able to promote a relationship between the children and their father.

17.

The mother shall provide a copy of Dr T’s report dated 1 December 2016, Dr N’s reports dated 25 August 2016 and 6 July 2018 and a copy of the Reasons for Judgment and Orders to the nominated health practitioner and any other mental health practitioner and general medical practitioner upon whom she may attend.

18.

The mother shall authorise the nominated health professional to provide a report to Dr T and a copy to the father, at the mother’s expense, when she has completed such treatment as is necessary or sufficient to:

(a) enable her to gain insight into her past behaviour; and

(b) is then able to promote a relationship between the children and their father.

19.

The appointment of the ICL be discharged upon completion of order 14.

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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