Sleeman and Sleeman - [2009] FamCA 745

FAMILY COURT OF AUSTRALIA

SLEEMAN & SLEEMAN

[2009] FamCA 745

FAMILY LAW – CHILDREN – Best interests – Where mother acknowledges mental health issues – Where child receiving therapy – Where allegations of abuse perpetrated by the father against the mother – Where order for sole parental responsibility made – Where single expert recommends reduction of time for the child to spend with the father

Family Law Act 1975 (Cth)

APPLICANT:

Mr Sleeman

RESPONDENT:

Ms Sleeman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

1072

2007

DATE DELIVERED:

26 May 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

18 - 20 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Carr (Solicitor Advocate)

SOLICITOR FOR THE APPLICANT:

Forshaws Neill

COUNSEL FOR THE RESPONDENT:

Mr Kearney

SOLICITOR FOR THE RESPONDENT:

S M Boyle & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cleary

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All prior Orders in relation to the child … born … April 2001 (“the child”) be and hereby are discharged.
The mother have sole parental responsibility for the child.
The mother is to authorise the child’s school to forward to the father copies of all documents relating to the child’s welfare and progress at school including but not limited to school reports, weekly notices and invitations to purchase school photographs.
The mother is to keep the father informed as to her contact telephone number and email address.
Communication between the parties is to be by email, mail and text message. Any mail from the father to the mother or to the child is to be addressed to them care of the maternal grandmother’s residence.
The mother is not to change the residential address for herself and the child outside of the Sydney Metropolitan Area without first giving the father 28 days notice of her intention so to do.
The mother is to immediately advise the father of any accident, serious illness or emergency involving the child occurring while he is in her care.
The father is to spend time with the child as follows:
(a)For a period of 2 hours in April, July, September and December supervised at the E Contact Service at such times that the Centre advises
Both parties are to forthwith attend the E Contact Centre and do such things as required by the centre to be registered as users of the Centre.
The reports of Dr R dated 28th August 2007 and 13th November may be published to Ms M, the child’s treating psychologist.
The Independent Children's Lawyer forthwith forward a copy of these orders to Ms M, the child’s treating psychologist.
Within 14 days of the date of these orders the mother arrange an appointment with the child’s treating psychologist for the purpose of explaining these orders to the child.
The appointment of the Independent Children’s Lawyer is extended for a period of six months from the date hereof.
I note the advice from Dr R that 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 Sleeman and Sleeman

Details

AGLC: Sleeman and Sleeman [2009] FamCA 745
Case: [2009] FamCA 745
Decision Date: 26 May 2009

CaseChat Overview and Summary

This matter concerned orders made by Le Poer Trench J regarding a child born in April 2001. The dispute involved the parental responsibilities and contact arrangements between the child's mother and father.

The court was required to determine the appropriate orders for parental responsibility, the father's time with the child, communication protocols between the parents, and measures to ensure the child's welfare and psychological well-being. Specific issues included the extent of the mother's sole parental responsibility, the nature and frequency of the father's contact, and the role of external agencies such as a contact centre and the child's treating psychologist. The court also considered provisions for future applications and the consequences of contravening the orders.

Le Poer Trench J discharged prior orders and made new directions, granting the mother sole parental responsibility. The father's time with the child was significantly restricted to supervised contact for two hours per month at a designated contact service. The court mandated specific communication methods between the parents, including email and mail, and imposed restrictions on the mother moving the child outside the Sydney Metropolitan Area without prior notice. Provisions were made for the father to receive school documents and for the mother to inform him of any emergencies involving the child. The court also ordered attendance at a contact centre, publication of psychological reports, and an appointment with the child's psychologist to explain the orders. The father was restrained from approaching the mother or child outside of the ordered contact times, with provisions for future applications by the father after the child turned eleven. The orders also detailed the consequences of contravention, including suspension of contact for failure to provide adequate notice of absence.

Orders

Orders of the court

All prior Orders in relation to the child … born … April 2001 (“the child”) be and hereby are discharged.

The mother have sole parental responsibility for the child.

The mother is to authorise the child’s school to forward to the father copies of all documents relating to the child’s welfare and progress at school including but not limited to school reports, weekly notices and invitations to purchase school photographs.

The mother is to keep the father informed as to her contact telephone number and email address.

Communication between the parties is to be by email, mail and text message. Any mail from the father to the mother or to the child is to be addressed to them care of the maternal grandmother’s residence.

The mother is not to change the residential address for herself and the child outside of the Sydney Metropolitan Area without first giving the father 28 days notice of her intention so to do.

The mother is to immediately advise the father of any accident, serious illness or emergency involving the child occurring while he is in her care.

The father is to spend time with the child as follows:

(a) For a period of 2 hours in April, July, September and December supervised at the E Contact Service at such times that the Centre advises

Both parties are to forthwith attend the E Contact Centre and do such things as required by the centre to be registered as users of the Centre.

10.

The reports of Dr R dated 28th August 2007 and 13th November may be published to Ms M, the child’s treating psychologist.

11.

The Independent Children's Lawyer forthwith forward a copy of these orders to Ms M, the child’s treating psychologist.

12.

Within 14 days of the date of these orders the mother arrange an appointment with the child’s treating psychologist for the purpose of explaining these orders to the child.

13.

The appointment of the Independent Children’s Lawyer is extended for a period of six months from the date hereof.

14.

I note the advice from Dr R that the child should see Ms M on a more frequent basis once the orders are published and I note the mother has advised through her lawyer that she will ensure that happens.

15.

The father is restrained from approaching the child or the mother at any times other than the times provided for face to face time for the father with the child pursuant to these orders.

16.

Following the child having attained the age of 11 years the father may apply to the court for further orders to spend time with the child.

17.

In the event of the father electing not to take up the opportunity to spend time with the child pursuant to these orders he is to notify the mother and the Independent Children's Lawyer of that fact and the orders for the child to spend time with his father will thereafter lapse until such time as the father notifies each of the Independent Children's Lawyer and the mother that he is wanting to take up that opportunity again.

18.

In the event of the father being unable to take up time with the child on a particular occasion then he is to give not less than 48 hours notice to the contact centre and the mother of that circumstance. Should he fail to attend at a scheduled visit with the child without providing the notice, as specified herein, then the order for time for the child to spend with the father is suspended until further order of the court or written consent of the mother to the continuation of the order.

19.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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