TEEL & BRADY - [2020] FamCA 1110

FAMILY COURT OF AUSTRALIA

TEEL & BRADY

[2020] FamCA 1110

FAMILY LAW – CHILDREN – Application by father to spend supervised time with the children – Application opposed by the mother – Interim orders that father spend supervised time with the children at a Children’s Contact Service

FAMILY LAW – CHILDREN – Orders by consent that single expert be appointed

Family Law Act 1975 (Cth) ss 60B and 60CC

J v C in [1969] 1 All E.R. 824
Donnell & Dovey [2010] Fam CAFC 16
Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Mr Teel

RESPONDENT:

Ms Brady

INDEPENDENT CHILDREN’S LAWYER:

Mr Murray

FILE NUMBER:

HBC

917

2020

DATE DELIVERED:

4 December 2020

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

4 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Pemberton

SOLICITOR FOR THE APPLICANT:

Clarke & Gee

COUNSEL FOR THE RESPONDENT:

Ms Burns

SOLICITOR FOR THE RESPONDENT:

Bishops

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Murray

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Murray & Associates

Orders

The children Y born … 2015 and X born … 2016 (‘the children’) live with Ms Brady (‘the mother’).
The mother keep the Independent Children’s Lawyer and Mr Teel (‘the father’) appraised of any significant aspects of the children’s health in advance if that is reasonable achievable.
The children shall spend supervised time with the father at least once per fortnight at the B Contact Centre (‘the Contact Centre’).
Each party shall contact the Contact Centre within seven days and:-
a.     arrange an appointment for assessment for suitability for supervised time;
b.     attend the assessment;
c.     comply with any appointments made by the Contact Centre for supervised time;
d.     comply with all reasonable rules of the Contact Centre; and
e.     comply with all reasonable requests and direction of the staff of the Contact Centre.
If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on the giving of fourteen days written notice to the other party and to the Court (liberty to relist the matter to apply twelve months from the date of this order).
The Contact Centre may recommend the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three days’ notice to the other party and to the Court (liberty to relist the matter to apply twelve months from the date of this order).
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the father is to spend time with the children as set out in this order or at times nominated by the Contact Centre.
In the event that the Contact Centre offers supervised times only at times which are less regular than specified in this order then times will…

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.

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Details

AGLC: TEEL & BRADY [2020] FamCA 1110
Case: [2020] FamCA 1110
Decision Date: 4 December 2020

CaseChat Overview and Summary

In the Family Court of Australia, Benjamin J made orders concerning the children Y and X, who reside with their mother, Ms Brady. The father, Mr Teel, had applied for supervised time with the children, an application opposed by the mother. The court was required to determine the arrangements for the father to spend time with the children, considering the opposition from the mother and the need for supervised contact.

The court's determination involved establishing interim orders for supervised time between the father and the children. These orders mandated that the children spend supervised time with the father at least once per fortnight at a designated Children's Contact Centre. Both parties were directed to arrange an assessment for suitability for supervised time with the Contact Centre and to comply with its requirements. The orders also addressed potential issues, such as the Contact Centre's inability to provide supervision, and allowed for the parties to relist the matter if necessary. Furthermore, by consent, orders were made restraining the parties from discussing the proceedings in the presence of the children and from abusing or demeaning each other or their families in the children's hearing.

The court's reasoning, as evidenced by the orders made, focused on facilitating supervised contact between the father and the children while ensuring the children's welfare. The orders reflect a practical approach to managing supervised time, including the father bearing the cost of the Contact Centre. The inclusion of consent orders regarding discussions of proceedings and parental conduct underscores the court's emphasis on protecting the children from parental conflict. The court also incorporated provisions for a single expert to be appointed, as agreed by the parties, and detailed the consequences of contravening the orders, pursuant to the Family Law Act 1975. The proceedings were adjourned for trial directions.

Orders

Orders of the court

The children Y born … 2015 and X born … 2016 (‘the children’) live with Ms Brady (‘the mother’).

The mother keep the Independent Children’s Lawyer and Mr Teel (‘the father’) appraised of any significant aspects of the children’s health in advance if that is reasonable achievable.

The children shall spend supervised time with the father at least once per fortnight at the B Contact Centre (‘the Contact Centre’).

Each party shall contact the Contact Centre within seven days and:-

a. arrange an appointment for assessment for suitability for supervised time;

b. attend the assessment;

c. comply with any appointments made by the Contact Centre for supervised time;

d. comply with all reasonable rules of the Contact Centre; and

e. comply with all reasonable requests and direction of the staff of the Contact Centre.

If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on the giving of fourteen days written notice to the other party and to the Court (liberty to relist the matter to apply twelve months from the date of this order).

The Contact Centre may recommend the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three days’ notice to the other party and to the Court (liberty to relist the matter to apply twelve months from the date of this order).

If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the father is to spend time with the children as set out in this order or at times nominated by the Contact Centre.

In the event that the Contact Centre offers supervised times only at times which are less regular than specified in this order then times will be spent at the times which are offered by the Contact Centre.

The father shall not attend the Contact Centre or its vicinity before the time with the children is to start and shall promptly leave the Contact Centre and the vicinity when the time with the children is to end.

10.

The periods of times to be spent provided in these orders may vary by reason of the closure of the Contact Centre’s services during holiday periods and in such event, time will be spent at times which the services can be provided by the Contact Centre.

11.

The father shall meet the cost of the Contact Centre.

12.

BY CONSENT the parties be restrained from discussing these proceedings in the presence or hearing of the children or allowing others to discuss these proceedings in the presence or hearing of the children except in the context of the single expert undertaking such report.

13.

BY CONSENT both parties shall be restrained from abusing, demeaning or belittling the other parent or members of their family in the presence or hearing of the children or allowing others to do so.

14.

BY CONSENT Orders be made in accordance with the minute of consent order signed by the parties and the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

15.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.

16.

These proceedings be adjourned before a Registrar of the Family Court at 10.15am on Wednesday 10 March 2021 for trial directions.

17.

Leave be given for the parties and the Independent Children’s Lawyer to have the matter restored on the giving of 7 days-notice to the other parties and the Court.

IT IS DIRECTED

18.

A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS CERTIFIED

19.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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