FAMILY COURT OF AUSTRALIA
| TALLANT & KELSEY (NO 2) | [2016] FamCA 560 |
| FAMILY LAW – CHILDREN – Interim parenting – Extent of and circumstances of the children’s time with the father – Parental responsibility – Expert Report admissibility determined – Provision of Expert Report to children’s therapeutic counsellor. |
| Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA, 65DAC |
| Tallant & Kelsey [2015] FamCA 1190 Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346 Rice & Asplund (1979) FLC 90-725. |
| APPLICANT: | Ms Tallant |
| RESPONDENT: | Mr Kelsey |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Jarman |
| FILE NUMBER: | PAC | 4932 | of | 2016 |
| DATE DELIVERED: | 10 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 6, 7, 8, 9 and 10 June 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Goodchild |
| SOLICITOR FOR THE APPLICANT: | Women's Legal Service NSW |
| RESPONDENT – LITIGANT IN PERSON: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Beck |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
Orders
IT IS ORDERED THAT
Reasons for Decision in relation to Mr R’s report raised on 6 June 2016 are published and distributed to the parties.
All previous parenting orders are discharged.
The children are to live the mother.
The father is to do all things necessary to attend upon his regular general practitioner within 7days to obtain an assessment of his mental health, including referral to any mental health professional who in the view of the general practitioner is appropriate.
The father shall attend upon all such appointments he is required to attend in accordance with Order 4 and undertake all treatment and abide by all reasonable directions of his mental health practitioner including attending all appointments, undertaking further courses, tests and taking all prescribed medications.
THE COURT NOTES
The father is required to obtain a report from his general practitioner or if he is referred to any other mental health professional for the purposes of the completion of the parenting proceedings.
IT IS ORDERED THAT
The father shall spend supervised time with the children, supervised by P Contact Centre or such other private supervision agency as nominated by the Independent Children’s Lawyer for a minimum of three hours per week or any other period as agreed between the parties.
Both parties do all such things and sign all such documents to enable the father’s time with the children in Order 6 to commence as soon as practicable and all such steps are to be taken within 7 days.
Both parties are to equally share the cost of supervision of the father’s time from funds held in the father’s account.
Order 4 of 20 April 2015 as amended on 8 May 2015 be varied to allow those funds to be utilised by both parties for the purposes of costs for supervision, and for the purposes referred to in Order 21 of these Orders.
The children have communication with their father as follows:
a.By telephone conversation each Wednesday at 7pm and to facilitate such calls, the father…
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- Case
- [2016] FamCA 560
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the primary residence of the children and the conditions under which the father would have contact. This involved assessing the father's mental health and his capacity to care for the children, necessitating a comprehensive mental health assessment and subsequent treatment. The court also needed to establish protocols for communication between the father and children, and to address the potential impact of parental behaviour on the children.
Hannam J ordered that the children live with the mother and discharged all previous parenting orders. The father was directed to undergo a mental health assessment and comply with any recommended treatment. Supervised time with the children was ordered, with specific arrangements for communication and a prohibition on derogatory remarks about the other parent. The father was also restrained from attending the mother's residence or the children's school without consent. Furthermore, the father was required to submit to regular drug and alcohol testing. Both parties were directed to enrol in parenting programs, and the Independent Children's Lawyer was granted liberty to restore the matter to the list if necessary. The court also made orders regarding the children's therapeutic counselling and the costs associated with it. The proceedings were listed for further directions.
Orders
Orders of the court
IT IS ORDERED THAT
1.
Reasons for Decision in relation to Mr R’s report raised on 6 June 2016 are published and distributed to the parties.
2.
All previous parenting orders are discharged.
3.
The children are to live the mother.
4.
The father is to do all things necessary to attend upon his regular general practitioner within 7days to obtain an assessment of his mental health, including referral to any mental health professional who in the view of the general practitioner is appropriate.
5.
The father shall attend upon all such appointments he is required to attend in accordance with Order 4 and undertake all treatment and abide by all reasonable directions of his mental health practitioner including attending all appointments, undertaking further courses, tests and taking all prescribed medications.
THE COURT NOTES
The father is required to obtain a report from his general practitioner or if he is referred to any other mental health professional for the purposes of the completion of the parenting proceedings.
IT IS ORDERED THAT
6.
The father shall spend supervised time with the children, supervised by P Contact Centre or such other private supervision agency as nominated by the Independent Children’s Lawyer for a minimum of three hours per week or any other period as agreed between the parties.
7.
Both parties do all such things and sign all such documents to enable the father’s time with the children in Order 6 to commence as soon as practicable and all such steps are to be taken within 7 days.
8.
Both parties are to equally share the cost of supervision of the father’s time from funds held in the father’s account.
9.
Order 4 of 20 April 2015 as amended on 8 May 2015 be varied to allow those funds to be utilised by both parties for the purposes of costs for supervision, and for the purposes referred to in Order 21 of these Orders.
10.
The children have communication with their father as follows:
a. By telephone conversation each Wednesday at 7pm and to facilitate such calls, the father is to telephone the number provided to him by the Independent Children’s Lawyer for the purposes of those calls and the mother will have the relevant telephone charged and available for the children to speak with their father.
b. Telephone conversations with the father as the children may request and the mother will facilitate the making of such telephone calls.
c. The father may communicate with the children by way of letters and gifts.
11.
The mother is to provide a telephone number to the Independent Children’s Lawyer by close of business today.
12.
The mother shall inform the Independent Children’s Lawyer of any health professional with which the children are engaged. Information in relation to current health professionals is to be provided by 4pm today and to be updated from time to time.
13.
Each party is refrained from making critical, racist or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
14.
The father is restrained from entering at, or coming within 100 metres of
a. The place of residence of the mother of the children, and
b. Any school or educational institution attended by the children without the prior written consent of the mother.
15.
The father shall submit to monthly or at the request of the Independent Children’s Lawyer, urinalysis in the following way:
a. The testing shall be by way of chain of custody urine for samples supplied in a supervised environment and check for adulteration;
b. The testing shall be broad spectrum including checking for methadone, metabolite, opiates, amphetamine types of substance, benzodiazepines, cannabinoids, cocaine metabolite, barbiturates, anabolic steroids, alcohol and any other substance which indicates behavioural changes as a side effect of the substance.
c. The drug testing shall meet the Australian/New Zealand standard 4308:2001;
d. The testing shall also include carbohydrate transference; and
e. Immediately upon the result being made available the husband shall provide a copy to the Independent Children’s Lawyer.
16.
Both parties enrol as soon as practicable in any such parenting program as directed by the Independent Children’s Lawyer and provide written evidence to the Independent Children’s Lawyer of the enrolment and completion of such course if it has occurred prior to the resumption of the hearing.
17.
Leave be granted to the Independent Children’s Lawyer to restore the matter to the list in any circumstances as she regards appropriate and in particular if the children’s time with the father under these orders does not occur.
18.
The mother do all such things as necessary to arrange therapeutic counselling for the children as nominated by the Independent Children’s Lawyer and the mother is restrained from taking the children to any other counsellor or therapist other than as directed by the Independent Children’s Lawyer.
19.
The Independent Children’s Lawyer has liberty to release to the therapist or counsellor engaged, Mr R’s report of July 2015, and my Reasons for Judgment published today with respect to admission of that report.
20.
The mother shall do all things necessary to ensure that the children attend school each day and at the required time.
21.
The costs of the children’s therapy should in the first instance be covered by Medicare in the event that a mental health plan is prepared for each of the children. If there are additional costs required to be paid for such therapy, then such funds may be paid from the father’s bank account under Order 9 of these Orders.
22.
The proceedings are listed for further directions at 9.30am on 22 June 2016.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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