Seaward and MacDuff - [2012] FamCA 128

FAMILY COURT OF AUSTRALIA

SEAWARD & MACDUFF

[2012] FamCA 128

FAMILY LAW - CHILDREN - With whom a child spends time – Interim Orders – Whether father’s time with the children should be reinstated

APPLICANT:

Mr Seaward

RESPONDENT:

Ms MacDuff

INDEPENDENT CHILDREN’S LAWYER:

Mr Samuel

FILE NUMBER:

SYC

2177

2011

DATE DELIVERED:

2 February 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

2 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Graves

SOLICITOR FOR THE APPLICANT:

David H Cohen & Co

SOLICITOR FOR THE RESPONDENT:

Abrams Turner Whelan Family Lawyers

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

I make orders in accordance with the document entitled Minute of Orders Sought by the Independent Children’s Lawyer, marked with the letter X and placed by me with the Court papers and set out hereunder:
MINUTE OF ORDER SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER

1.   That all previous parenting orders in respect to the children B born … .12.98, J born … .02.04 and Z born … .09.05 be discharged.

2.   That pending further order the said children live with the mother.

3.   That pending further order the children J and Z spend supervised time with the father as follows:-

a.   Such time to be supervised by P Contact Agency.

b.   For a period of three (3) hours alternating as follows:-

i.On a school day to be agreed to by the parties from the conclusion of school until 6.15pm at a venue close to the children’s residence at [Town A] and in the absence of agreement the father can nominate a day other than Friday or on which there is no sports training.

ii.Each other week on Saturday at times to be agreed at a venue in Sydney.

c.   The parties to forthwith do all things necessary and complete all documents required to complete any intake procedures required by [P Contact Agency] with a view to the father’s time with the children commencing as soon as is reasonably practicable.

d.   The father’s time with the children to take place at a venue deemed appropriate by [P Contact Agency] taking into account any risk assessment conducted by that organisation.

e.   All costs of [P Contact Agency] to be paid by the father.

f.   Telephone communications twice per week and in the absence of agreement between the parties each Wednesday and Sunday between 6.00pm and 7.00pm and further the mother facilitate the children communicating by telephone with the father and she may monitor, but not participate in such communication.

g.   For the purpose of implementing paragraph 3(b)(i) herein the children are to be collected from their school and returned to the mother outside their school at 6.15pm.

h.   For the purpose of implementing paragraph 3(b)(ii) herein the children shall be delivered to and collected from a venue nominated by [P Contact Agency] by the mother or her nominee.

4. That the child [B] spend time and communicate with the father in accordance with her wishes NOTING…

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 Seaward and MacDuff

Details

AGLC: Seaward and MacDuff [2012] FamCA 128
Case: [2012] FamCA 128
Decision Date: 2 February 2012

CaseChat Overview and Summary

This matter concerned parenting orders for three children, B, J, and Z, involving the mother and the father. The Independent Children’s Lawyer (ICL) sought orders that were largely consented to by the parties, with certain provisions determined by the court.

The court was required to determine the specific terms of parenting orders, including the children's living arrangements, the father's time with the children, communication arrangements, and conditions to be imposed on both parents. The court also had to consider the implications of these orders in relation to any existing family violence orders and the consequences of contravening the new orders.

Rees J made orders discharging previous parenting orders and establishing new arrangements. The children were to live with the mother, and pending further order, the children J and Z were to spend supervised time with the father through a contact agency. The father was to bear all costs associated with the contact agency. The child B's time and communication with the father were to be in accordance with her wishes, with the option to participate in the supervised time arrangements for J and Z if she chose. Both parents were subject to various restraints, including prohibitions on denigrating each other, physically disciplining the children, or discussing the proceedings with them. The father's time with the children was to be suspended in the event of breaches of certain conditions. The court also noted that the orders were made by consent in part, with specific provisions determined by the judge.

Orders

Orders of the court

I make orders in accordance with the document entitled Minute of Orders Sought by the Independent Children’s Lawyer, marked with the letter X and placed by me with the Court papers and set out hereunder:

MINUTE OF ORDER SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER

1. That all previous parenting orders in respect to the children B born … .12.98, J born … .02.04 and Z born … .09.05 be discharged.

2. That pending further order the said children live with the mother.

3. That pending further order the children J and Z spend supervised time with the father as follows:-

a. Such time to be supervised by P Contact Agency.

b. For a period of three (3) hours alternating as follows:-

i. On a school day to be agreed to by the parties from the conclusion of school until 6.15pm at a venue close to the children’s residence at [Town A] and in the absence of agreement the father can nominate a day other than Friday or on which there is no sports training.

ii. Each other week on Saturday at times to be agreed at a venue in Sydney.

c. The parties to forthwith do all things necessary and complete all documents required to complete any intake procedures required by [P Contact Agency] with a view to the father’s time with the children commencing as soon as is reasonably practicable.

d. The father’s time with the children to take place at a venue deemed appropriate by [P Contact Agency] taking into account any risk assessment conducted by that organisation.

e. All costs of [P Contact Agency] to be paid by the father.

f. Telephone communications twice per week and in the absence of agreement between the parties each Wednesday and Sunday between 6.00pm and 7.00pm and further the mother facilitate the children communicating by telephone with the father and she may monitor, but not participate in such communication.

g. For the purpose of implementing paragraph 3(b)(i) herein the children are to be collected from their school and returned to the mother outside their school at 6.15pm.

h. For the purpose of implementing paragraph 3(b)(ii) herein the children shall be delivered to and collected from a venue nominated by [P Contact Agency] by the mother or her nominee.

4. That the child [B] spend time and communicate with the father in accordance with her wishes NOTING THAT [B] may spend time and communicate with the father as per the terms of paragraph 3 of the orders contained herein if she chooses to do so.

5. That the father’s time with the children pursuant to paragraphs 3 and 4 of the Orders contained herein be subject to the following conditions:-

a. That the father not denigrate the mother or permit any third party to do so within the presence or hearing of the children.

b. That the father not physically discipline the children or permit any third party to do so.

c. That the father not discuss the proceedings or any issues arising out of the proceedings with the children or permit any third party to do so.

d. That the father not show the children copies of any court documents filed or prepared in respect to these proceedings or in any related proceedings.

e. That the father not attend on the children’s place of residence or school except for the purpose of compliance with Order 3.

f. That the father not communicate with any of the children by any means other than as provided for in the orders contained herein and this includes any electronic means such as SMS, text or email.

g. That the father comply with the terms of Order 8 contained herein.

h. That the father not contact by any means the mother’s employer or place of employment.

6. In the event that the father breach’s any of the conditions contained in paragraphs 5 or 8 of the orders contained herein the father’s time with the children to be suspended.

7. That the mother be restrained from the following:-

a. Denigrating the father or permitting any third party to do so within the presence or hearing of the children.

b. Physically disciplining the children or permitting any third party to do so.

c. Discussing the proceedings or any issues arising out of the proceedings with the children or permitting any third party to do so.

d. That the mother not show the children copies of any court documents filed or prepared in respect to these proceedings or in any related proceedings.

e. Leaving the children or any of them in the care of her husband [Mr MacDuff] without herself or another responsible adult being present.

8. That both parties be restrained from having any of the children interviewed by the NSW Police, JIRT, the Department of Family and Community Services, any psychologist or psychiatrist, any counsellor or any other health professional or medical practitioner except as follows:-

a. Order of the court.

b. Attendance on a General Practitioner for normal and routine medical appointments and examinations.

c. In the case of a medical emergency on a Hospital or relevant medical practitioner or health professional.

9. The parties to only communicate by way of mobile telephone or text message in the case of an emergency and that both parties otherwise be restrained from communicating with the other by any other means.

10. That the mother make each of the children available to the Independent Children’s Lawyer forthwith for the purpose of explaining the orders contained herein.

11. Pursuant to Section 68Q, the extent to which this Order is inconsistent with an existing family violence order, the family violence order is invalid.

12. That leave be granted to the parties and to the Independent Children’s lawyer to re-list the proceedings on seven (7) days notice in respect to the implementation of these orders and or any issue relating to the suspension of the father’s time with the children pursuant to the Orders contained herein.

13. Pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

I note that paragraphs 1, 2, 3(a), (c), (d), (e), and (g), 5, 6, 7 (a),(b),(c) and (d), 8, 9, 10, 11, 12 and 13 are made by consent.

I note that paragraphs 3(b), 3(f), 4, 5(e) and 7(e) are orders made pursuant to my determination.

The matter is otherwise adjourned for hearing before the Honourable Justice Ryan.

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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