Standen and Standen - [2011] FamCA 966

FAMILY COURT OF AUSTRALIA

STANDEN & STANDEN

[2011] FamCA 966

FAMILY LAW – PARENTING –Parental responsibility – Where there is a dispute about parental responsibility – Where one child lives with the mother and the other child lives with the father – Where it is agreed that the children should spend time with each other – Allegations of sexual abuse of the mother’s daughter by the father – Whether there is an unacceptable risk of physical or psychological harm or abuse – Circumstances under which the children spend time with the parent with whom they do not live – Cost and inconvenience associated with facilitating contact between the children and between the children and each parent – Where the father has an enmeshed relationship with the child with whom he lives – Where it is agreed that there should be counselling to assist in restoring the relationship between the mother and the child that lives with the father.

McCall & Clark (2009) FLC 93-405); Mazorski & Albright (2007) 37 Fam LR 518; Leighton & Carey [2010] FamCAFC 94

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61C, 61DA, 65DAA and 65DAC
Evidence Act1995 (Cth) s 140

APPLICANT: MOTHER

Ms Standen

RESPONDENT FATHER:

Mr Standen

FILE NUMBER:

SYC

2118

2010

DATE DELIVERED:

19 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATES:

29^th & 30^th November, 1^st & 2^nd December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT MOTHER:

Mr D. Dura

SOLICITOR FOR THE APPLICANT MOTHER

Willis & Bowring Solicitors

RESPONDENT FATHER

In Person

INDEPENDENT CHILDREN’S LAWYER

Delaney Lawyers

Orders
1.   All previous parenting orders, save those made on 2 December 2011 are discharged.
2.   The child, B (born … 2002) (“B”) shall live with the mother
3.   The child, C (born … 1997) (“C”) shall live with the father.
4.   The mother shall have sole parental responsibility for making decisions about the long term care, welfare and development of B.
5.   The father shall have sole parental responsibility for making decisions about the long term care, welfare and development of C.
6.   Pending implementation of the arrangements set out in Order 12, the parents do all such things, give all such directions and sign all such documents as may be necessary to ensure C and B forthwith resume spending time with each other at D Town Community Contact Centre, in accordance with the previous arrangements, at such times and on such dates as may be nominated by the Director or Manager of the centre.
7.   In implementing the provisions of Order 6, the parents do all such things as may be reasonably required of them by the Director or Manager of the D Town Community Contact Centre, including but not limited to following the reasonable directions of such person or their nominee as to the time of arrival and departure from the said centre and the point of entry to and departure from the said centre.
8.   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 Standen and Standen

Details

AGLC: Standen and Standen [2011] FamCA 966
Case: [2011] FamCA 966
Decision Date: 19 December 2011

CaseChat Overview and Summary

This matter concerned parenting orders made by Loughnan J in the Family Court of Australia. The proceedings involved the parents of two children, B (born 2002) and C (born 1997), and addressed the arrangements for their living arrangements, parental responsibility, and time spent with each other and their parents. The court also considered the involvement of the maternal grandparents and the need for counselling for child C.

The central legal issues before the court were: determining the primary living arrangements for B and C; allocating sole parental responsibility for long-term decisions concerning each child; establishing a regime for the children to spend time with each other and with their parents, including supervised contact arrangements and arrangements at the maternal grandparents' home; and mandating counselling for child C to address issues identified in a report by Dr E, with provisions for parental and grandparental participation. The court also had to consider the practical implementation of these orders, including communication between parents, financial responsibilities for counselling and contact centres, and the mother's ability to obtain a passport for B and travel internationally with her.

Loughnan J's reasoning led to orders that discharged previous parenting orders, with B to live with the mother and have sole parental responsibility for her long-term care, and C to live with the father and have sole parental responsibility for his long-term care. The court established a detailed schedule for the children to spend time together, initially at a community contact centre and later at the maternal grandparents' home, with provisions for parental involvement during contact. Crucially, the father was ordered to cause C to attend counselling, with the mother and maternal grandparents also to participate if requested by the counsellor. The court also made orders regarding communication, information sharing, and the prevention of denigration between parents, and permitted the mother to obtain a passport for B and travel internationally under specific conditions. The proceedings were listed for review in December 2012, with a Family Consultant to prepare a report on C's progress and the children's relationships.

Orders

Orders of the court

1. All previous parenting orders, save those made on 2 December 2011 are discharged.

2. The child, B (born … 2002) (“B”) shall live with the mother

3. The child, C (born … 1997) (“C”) shall live with the father.

4. The mother shall have sole parental responsibility for making decisions about the long term care, welfare and development of B.

5. The father shall have sole parental responsibility for making decisions about the long term care, welfare and development of C.

6. Pending implementation of the arrangements set out in Order 12, the parents do all such things, give all such directions and sign all such documents as may be necessary to ensure C and B forthwith resume spending time with each other at D Town Community Contact Centre, in accordance with the previous arrangements, at such times and on such dates as may be nominated by the Director or Manager of the centre.

7. In implementing the provisions of Order 6, the parents do all such things as may be reasonably required of them by the Director or Manager of the D Town Community Contact Centre, including but not limited to following the reasonable directions of such person or their nominee as to the time of arrival and departure from the said centre and the point of entry to and departure from the said centre.

8. That the father do all such things, give all such directions and sign all such documents as may be necessary to cause C to attend counselling with an accredited counselling service or accredited counsellor within a reasonable proximity to his current place of residence and, in the absence of such agreement between the parents as to such counselling service or counsellor within twenty-one (21) days of the date of these Orders then as may be nominated by the Regional Co-ordinator of Family Court Child Dispute Services at Sydney or his/her nominee, with such counselling to address the issues identified by Dr E in her Report dated 7 July 2011 and, in particular:

a. C’s relationship(s) with each of his parents;

b. C’s relationship with B; and

c. C’s relationship with the maternal grandparents.

9. Both the father and the mother shall participate in the counselling referred to in Order 8 with C, if so requested by the counsellor, and further, the mother do all things necessary to facilitate B’s inclusion in such counselling as and when requested by the counsellor.

10. It is noted that the maternal grandparents indicated, through the mother’s Counsel, their willingness to participate in the counselling referred to in Order 8 and Order 9, as and when requested by the counsellor.

11. The Independent Children’s Lawyer is at liberty to provide to the coordinator of M Care and the Family Consultant or Therapist a copy of these Orders, a copy of the Report of Dr E and a copy of the Child Responsive Program Memorandum of Ms F, which formed part of the evidence of these proceedings.

12. The parents shall do all such things, give all such directions and sign all such documents as may be necessary to ensure that C and B spend the following time with each other:

12.1 In Weeks 1 and 3 of each four (4) week cycle:

12.1.1 The mother deliver B to the supervised contact centre at G Town (the “Contact Centre”) at the commencement of the relevant period on Saturday or such other days as may be nominated by the Coordinator of the Contact Centre, at such time as may be nominated by the said Coordinator and to collect B from the Contact Centre at the conclusion of such period, which shall not exceed two (2) hours;

12.1.2 The father deliver C to the Contact Centre at the commencement of the relevant period on Saturday or such other days as may be nominated by the Coordinators of the Contact Centre, at such time as may be nominated by the said Coordinator and to collect C from the Contact Centre at the conclusion of such period, which shall not exceed two (2) hours;

12.1.3 The father shall, if he so elects, spend time with B and C at the Contact Centre for the first hour of the contact period nominated above;

12.1.4 The mother shall, if she so elects, spend time with B and C at the Contact Centre for the second hour of the contact period nominated above.

12.2 As and from a date agreed by the parents, but no later than 31 May 2012, in the fourth week of each four (4) week cycle:

12.2.1 the mother shall cause C to be collected from after school on Friday and delivered to the home of the maternal grandparents at H Town and shall cause C to be returned to school on the following Monday, at the completion of the relevant weekend.

12.2.2 The mother shall cause B to be delivered to the residence of the maternal grandparents at H Town no later than 3.00pm on Saturday of the said weekend.

13. During school holiday periods, the time the children are to spend with each other and with the parents, pursuant to these Orders, shall be suspended and each four (4) week cycle shall resume with the first week of each new school term.

14. During each school holiday period, the parents do all such things as may be necessary to ensure the children, B and C, spend at least one (1) day between the hours of 9.00am and 5.00pm with each other, at either the Contact Centre or such other venue as the parents may agree in writing at least fourteen (14) days prior to such holiday periods or after 31 May 2012, at the home of the maternal grandparents at H Town and its environs.

15. Unless the parents otherwise agree in writing, the holiday time referred to in Order 14 above, be facilitated by the father delivering C to the place nominated for the children to spend time together and then collecting him from such a venue at the completion of the relevant time and by the mother delivering B to such venue at the commencement and collecting her from such venue at the completion of such time.

16. Until further order the mother shall be responsible for costs associated with the counselling and the children spending time with each other at Contact or Community Centres in accordance with these orders. However, the parents shall responsible for their own transport costs associated with those arrangements.

17. Each of the mother and the father shall request the Coordinators of the Contact Centre to implement appropriate arrangements for the changeover of the parents at the Centre, so as to ensure the mother and the father do not come into contact with each other at the Centre.

18. For the purpose of implementing the arrangements referred to in these Orders, the mother shall be at liberty to cause the maternal grandmother, her son Mr I or his wife MS J, or such other adult members of her family, other than Mr K (unless the father agrees in writing), as are known to C, to collect C at the commencement of such time and to return him to either the father’s residence or school, as may be appropriate, at the completion of such time.

19. That each parent share with the other parent any information regarding health, emotional well-being or schooling received by them during the time the children are in their care including medication prescribed and/or taken, changes in behaviour and school newsletters and reports.

20. The parents are hereby restrained from denigrating the other parent within the hearing of the children or either of them or from allowing any other person to do so within the hearing of the children or either of them.

21. Each parent shall notify the other in writing of any changes in a telephone contact number within three (3) days of any such change.

22. The parents shall do all such things as may be necessary to ensure that the children or either of them may communicate with the other parent at all such reasonable times as the children may reasonably request when they are spending time with the other parent and in order to facilitate this, each parent shall ensure the children have available to them a working telephone service and are instructed in the use of such service should the need arise.

23. Each parent will notify the other promptly, and in any event no later than within four (4) hours, of any illness or injury suffered by the children or either of them requiring hospitalisation and in the event of the latter each parent shall ensure that the children are provided with any prescribed medication and that it is administered to them in accordance with the directions of the treating medical practitioner.

24. Both parents shall authorise any treating general practitioner and/or medical specialist to provide any information which either parent may reasonably require concerning the welfare of the children.

25. The mother is permitted and solely authorised to obtain a passport for B, without the consent of the father and the requirement for the father to execute a Passport Application.

26. The mother be permitted to travel with B outside Australia, provided that:

26.1 The mother provides the father with not less than twenty-one (21) days written prior notice of her intention to travel, together with an itinerary in respect of such travel; and

26.2 Such travel is to a country, state or province which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

27. These proceedings be restored to the list for review in December 2012, on a date and at a time allocated by the Court for assessment of C’s counselling, pursuant to these Orders, and to determine what, if any, further Orders should be made for the benefit of the children.

28. Ms F, Family Consultant, or such other Family Consultant as may be nominated by the Regional Co-ordinator of Family Court Child Dispute Services at Sydney or his/her nominee, shall prepare a Family Report prior to the date referred to above, such Report to address the progress of C’s counselling, his relationships with each of the parents, his relationship with B and his relationship with the maternal grandparents, as well as B’s relationships with each of the parents and her relationship with C.

29. That the Independent Children’s Lawyer be at liberty to provide a copy of the following documents to C’s counsellor, so as to assist in assessing and assisting C:

29.1 A copy of these Orders;

29.2 A copy of the Reasons for Judgment of the Honourable Justice Loughnan;

29.3 A copy of Dr E’s Report of 7 July 2011; and

29.4 Such further or other documents as the Court may determine.

30. That each parent and the Independent Children’s Lawyer have liberty to apply on seven (7) days notice in relation to these Orders, or the matter generally, upon approach to the Associate to the Honourable Justice Loughnan.

31. As soon as practicable after the making of these orders the ICL shall liaise with the Regional Co-ordinator of Family Court Child Dispute Services at Sydney or his/her nominee in relation to the practicability of the ordered arrangements insofar as the Service is concerned. In that specific regard or otherwise, the parties may restore the matter before Justice Loughnan within 28 days of the date of delivery of judgment, or such further time as they might agree, upon notice to the Court and each other, in relation to the wording of the Orders.

32. It is noted that the Court made an order on 29 November 2011 suppressing the release of the mother’s address except by way of Court order that remains in force.

33. Pursuant to s 62B and s 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 the attached Fact Sheet.

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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