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Theodore & Theodore

Theodore & Theodore

Case [2017] FamCA 588 11 August 2017

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FAMILY COURT OF AUSTRALIA

THEODORE & THEODORE

[2017] FamCA 588

FAMILY LAW – CHILDREN – Interim orders – Best Interests – Where final consent orders were made in 2014 – Where there are significant concerns as to the father’s mental health – Where there are historical issues of family violence – Where there is a current apprehended domestic violence order in place protecting the mother from the father – Where there are allegations the father has abused the children – Where the children have reported that they are fearful of the father – Where there is a lack of forensic evidence currently available – Where the need to protect the children is determinative – Orders made for the children to live with the mother and spend supervised time with the father.

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Reopen – Where interim judgment as to parenting orders reserved – Where father seeks to reopen his case – Where father seeks to rely on affidavit of his treating mental health practitioner –Where consideration of applicable principles – father’s application for leave to reopen granted.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Australian Securities and Investments Commission v Rich [2006] NSWSC 826
Banks & Banks [2015] FamCAFC 36
Deiter& Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Mallard & Mallard [2011] FamCA 876
Marvel v Marvel [2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Suell & Suell (Re-Opening) [2009] FamCA 55
Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471

APPLICANT:

Ms Theodore

RESPONDENT:

Mr Theodore

FILE NUMBER:

PAC

5789

2014

DATE DELIVERED:

11 August 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17 July 2017 and 4 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Eldershaw

SOLICITOR FOR THE APPLICANT:

Withstand Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Rosic

SOLICITOR FOR THE RESPONDENT:

Rowlandson & Co Solicitors

Orders, Pending further order

That all previous parenting orders are suspended.
That the mother have sole parental responsibility for the children B born … 2009 and D born … 2010.
That the children live with the mother.
That the children spend time with the father as agreed between the father and mother in writing such writing to include SMS or email communication and in default of agreement:
a)the children spend time with the father each Saturday for a period of not less than two hours between the hours of 10.00 am and 4.00 pm;
b)that such time to be supervised by W Group or Z Group or otherwise supervised by the paternal grandfather or a person or entity agreed to in writing by the mother and father such writing to include SMS and email communication.
That, otherwise, the father be restrained from approaching or, otherwise, contacting the children unless agreed to by 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 Theodore & Theodore

Details

AGLC: Theodore & Theodore [2017] FamCA 588
Case: [2017] FamCA 588
Decision Date: 11 August 2017

CaseChat Overview and Summary

The parties in this matter were Theodore and Theodore, with the dispute concerning interim parenting orders for their children. The application was heard by Foster J.

The court was required to determine whether to grant the father leave to reopen his case to rely on an affidavit from his treating mental health practitioner. The court also had to consider the best interests of the children in making interim parenting orders, taking into account significant concerns regarding the father's mental health, historical family violence, an apprehended domestic violence order protecting the mother, allegations of child abuse, and the children's expressed fear of the father.

Foster J granted the father's application for leave to reopen his case, considering the applicable principles for such applications. In determining the interim parenting orders, the court found that the need to protect the children was determinative. Consequently, orders were made for the children to live with the mother and spend supervised time with the father.

Orders