Theophane & Hunt (No 3) - [2011] FamCA 968

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT (NO. 3)

[2011] FamCA 968

FAMILY LAW - CHILDREN - Interim Orders - with whom a child lives - with whom a child spends time - with whom a child communicates - allegations of violence - allegation that child at risk in the care of the mother - order that child be returned to the mother

Family Law Act 1975 (Cth) ss 60B, 60CA, 60cc, 61DA
Evidence Act 1995 (Cth) s 128

Reece & Reece [2011] FamCAFC 24
Hunt & Theophane [2011] FMCAfam 845

APPLICANT:

Mr Theophane

RESPONDENT:

Ms Hunt

INDEPENDENT CHILDREN’S LAWYER:

Mrs Susan Gray

FILE NUMBER:

CSC

1089

2007

DATE DELIVERED:

20 December 2011

PLACE DELIVERED:

Hobart

PLACE HEARD:

Cairns

JUDGMENT OF:

Benjamin J

HEARING DATE:

9, 10 and 11 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Reaston

SOLICITOR FOR THE APPLICANT:

O'Reily Stevens Bovey

COUNSEL FOR THE RESPONDENT:

Applicant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

Orders

UNTIL FURTHER ORDER

All previous parenting Orders in relation to the child X (“the child”) born ... September 2006 be and are discharged.
Both parties be and are restrained from relocating the child's place of residence from the Far North Queensland area.
As and from 11 December 2011, the shall child live with the mother.
As and from 11 December 2011, the mother shall have sole parental responsibility for the child including determining:-
a.any medical or health matter concerning the said child;
b.matters relating to the education of the said child, including but not limited to, the choice of the child's school together with the provision, at the non-residence parent's expense, to the other parent copies of all school reports, school photographs and all other communications/newsletters from the said child's school other than with respect to routine or administrative matters;
c.disciplinary matters other than those of a trivial nature;
d.matters concerning the social development and sporting activities of the said child;
e.the place of residence of the child within the Far North Queensland area.
The child will remain substantially in the father's care up until 11 December 2011, and the child will spend supervised time with the mother from the date of this order to 11 December 2011, as follows:-
a. on Thursday 8 December 2011 from 9.00am to Friday 9 December 2011at 5.00pm;
b. on Sunday 11 December 2011 from 9.00am;
c.the collection and delivery point for these times referred will be the S Day Care Centre;
d.the father is to deliver the child by at least 8.45am on each of the above dates;
e.the mother and the supervisor (or the supervisor alone) are/is to collect the child at 9.00am on the above dates;
f.the mother and the supervisor (or the supervisor alone) are/is to return the child by 5.00pm on Friday 9 December 2011 and immediately leave the area;
g.the father is to collect the child at 5.15pm on 9 December 2011;
h.the supervisor is to be one…

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 Theophane & Hunt (No 3)

Details

AGLC: Theophane & Hunt (No 3) [2011] FamCA 968
Case: [2011] FamCA 968
Decision Date: 20 December 2011

CaseChat Overview and Summary

This case involved parenting orders concerning a child born in September 2006. The dispute centred on the child's residence and parental responsibility, with the father seeking to relocate the child to Melbourne and the mother seeking the child's return to her care. The matter was heard by Benjamin J.

The court was required to determine several legal issues, including the likely effect of any changes in the child's circumstances, particularly the impact of separation from either parent or other significant persons. It also had to consider the practical difficulties and expenses associated with a child spending time with and communicating with a parent, and whether such difficulties would substantially affect the child's right to regular contact with both parents. Furthermore, the court needed to assess the capacity of each parent to provide for the child's needs, including emotional and intellectual needs, and consider the child's maturity, sex, lifestyle, background, and any other relevant characteristics.

Benjamin J's reasoning focused on the best interests of the child. The court was not satisfied that the father would facilitate and encourage a close relationship between the child and the mother and her broader family, noting the child's expressed distress at missing her mother and wider family, a concern the father appeared to lack insight into. The court also considered the significant arrears in child support owed by the father and the unlikelihood of him financially supporting contact if the child relocated to Melbourne, making meaningful contact difficult. While acknowledging the mother's recent mental health challenges, the court found that these could be managed and that, on balance, the mother demonstrated a better capacity to provide for the child's emotional, intellectual, and physical needs.

The court ordered the discharge of all previous parenting orders and restrained both parties from relocating the child's residence from the Far North Queensland area. As of 11 December 2011, the child was to live with the mother, who was granted sole parental responsibility for medical, educational, disciplinary, social development, sporting activities, and residence within Far North Queensland. Specific arrangements were detailed for the child's time with the father, including supervised time with the mother prior to 11 December 2011, and subsequent time with the father on alternate weekends and during school holidays. The orders also included provisions for family therapy, the mother's engagement with mental health services, supervision of the mother's care, and injunctions preventing the discussion of proceedings or adult issues with the child, as well as denigration of either parent. A Family Consultant was appointed to supervise compliance with the orders for two years.

Orders

Orders of the court

UNTIL FURTHER ORDER

All previous parenting Orders in relation to the child X (“the child”) born ... September 2006 be and are discharged.

Both parties be and are restrained from relocating the child's place of residence from the Far North Queensland area.

As and from 11 December 2011, the shall child live with the mother.

As and from 11 December 2011, the mother shall have sole parental responsibility for the child including determining:-

a. any medical or health matter concerning the said child;

b. matters relating to the education of the said child, including but not limited to, the choice of the child's school together with the provision, at the non-residence parent's expense, to the other parent copies of all school reports, school photographs and all other communications/newsletters from the said child's school other than with respect to routine or administrative matters;

c. disciplinary matters other than those of a trivial nature;

d. matters concerning the social development and sporting activities of the said child;

e. the place of residence of the child within the Far North Queensland area.

The child will remain substantially in the father's care up until 11 December 2011, and the child will spend supervised time with the mother from the date of this order to 11 December 2011, as follows:-

a. on Thursday 8 December 2011 from 9.00am to Friday 9 December 2011at 5.00pm;

b. on Sunday 11 December 2011 from 9.00am;

c. the collection and delivery point for these times referred will be the S Day Care Centre;

d. the father is to deliver the child by at least 8.45am on each of the above dates;

e. the mother and the supervisor (or the supervisor alone) are/is to collect the child at 9.00am on the above dates;

f. the mother and the supervisor (or the supervisor alone) are/is to return the child by 5.00pm on Friday 9 December 2011 and immediately leave the area;

g. the father is to collect the child at 5.15pm on 9 December 2011;

h. the supervisor is to be one of the following persons: the maternal grandmother (Ms H); the maternal grandfather (Mr H); the mother's husband (Mr E); or Ms J.

As and from 11 December 2011 the child will spend time with the father as follows:-

A. from 9.00am on Friday 23 December 2011 until 5.00pm on Monday 26 December 2011. The mother and the supervisor (or the supervisor alone) are/is to deliver the child to the S Day Care Centre by no later than 8.45 am on Friday 23 December 2011 and immediately leave the area. The father will deliver the child to the S Day Care Centre at 4.45 pm on Monday 26 December 2011 and immediately leave the area.

B. for each of the the two weekends from 9.00am Friday 6 January 2012 to 3.00pm Sunday 8 January 2012 and 9.00am Friday 20 January 2012 to 3.00 pm on Sunday 22 January 2012 the mother and her supervisor (or the supervisor alone) shall deliver the child to the S Day Care Centre by 9.00am on each of the the Fridays and immediately leave the area. The father is to collect the child from 9.15am on each of the Fridays. The father is to deliver the child to the C Contact Centre on the Sunday afternoon on 8 January 2012 and Sunday 22 January 2012, by 2.45 pm and immediately leave the area. The mother and her supervisor (or the supervisor alone) shall collect the child at 3.00pm from the Contact Centre on the Sunday 8 January 2012 and Sunday 22 January 2012.

C. from Friday 3 February 2012 at the conclusion of school with the father to collect the child from the school until Sunday 5 February 2012 at 3.00pm when the father will deliver the child to the C Contact Centre and on each alternate weekend thereafter during the school terms and school holidays. Such alternate weekends to conclude on the weekend ending Sunday 16 December 2012.

D. from Monday 24 December 2012 at 9.00am until Saturday 29 December 2012 at 5.00pm. In this respect the mother and her supervisor (or the supervisor alone) will deliver the child to the O Day Care Centre by no later than 8.45am and immediately leave the area. The father will deliver the child to the C Shopping Centre by no later than 4.45pm. to a nanny nominated by and paid for by the mother at the entrance to the Coffee Shop located on the ... Entrance. The father is to immediately leave the area.

E. from Friday 1 February 2013 at the conclusion of school with the father to collect the child from the school until Sunday 5 February 2013 at 3.00pm when the father will deliver the child to the C Contact Centre and on each alternate weekend thereafter during the school terms and school holidays.

The father will be responsible for paying the costs associated with the changeovers for the S Day Care Centre.

That in the event that the S Day Care Centre cannot facilitate the handover during the December school holidays then the handover is to be at the O Day Care Centre. In the event that neither the S Day Care Centre nor the O Day Care Centre nor the C Contact Centre will be available to facilitate handover; the mother will engage the nanny service and the nanny service will facilitate the handover as directed by the mother and the handover and collection point will be at the entrance to the Coffee Shop located on the ... Entrance to the C Shopping Centre. The parties are to share the cost of any nanny service, O Day Care Centre or C Contact Centre or other service required to facilitate the changeover for the child.

Whilst the child is in her care, and as and from 11 December 2011 until 11 June 2012 the mother shall live with one or other of the following persons: the maternal grandmother (Ms H), the maternal grandfather (Mr H), the mother's husband (Mr E) or Ms J (the supervisors).

10.

Such supervisor may only be supervisor if such supervisor files and serves an undertaking to the effect that one or other of the supervisors is living in the same residence as the mother at all times over that six (6) month period; and inform the Independent Children's Lawyer, the mother's treating general medical practitioner, treating Family therapist and M Mental Health Service if the mother fails to attend therapy, a mental health appointment or fails to medicate herself as directed by a healthcare professional; makes any threat of self harm, cause harm to the child or harm to the father; such notice to be both oral and in writing and to be made as soon as practicable or at least within forty eight (48) hours of notice to or by the supervisor. One or other of the supervisors will be present at any changeover.

11.

The father and mother shall within fourteen (14) days from the date of this order do all acts to separately engage in family therapy (of three to five sessions - the number to be determined by the psychologist) with a clinical psychologist (such as Ms W, Mr N) who has specific skills in working with children and supporting parents to make positive changes to their relationship with the purpose of:-

A. for the mother, to learn and practice alternative responses to the child's injuries or potential harm in order to “slow down” alarmist responses;

B. for the mother, to practice structured reassuring goodbyes which teach the child how to regulate her own feelings/emotions;

C. for the father, to practice reassuring welcomes following the child's time with her mother which communicate positively to the child about her spending that time instead of encouraging her to shut it out;

D. for the father, to learn how to learn new ways to feel reassured about his relationship to the child rather than requiring the child's reassurance for his hurts and feelings;

12.

The counselling notes from the Family Therapist are not available for access by the parties by request, subpoena or otherwise without leave of the Court. The Family Therapist shall provide a short outline report (as to the parties attendance and outcomes of the therapy) to the Section 65L Supervisor and the Independent Children's Lawyer on how the parents are progressing.

13.

The mother shall engage in regular treatment with the M Mental Health Service for a period of two years from the date of this order so as to:

i. reduce her generalised anxiety;

ii. undertake psycho education about the origins and affects of recurrent dissociation;

iii. learn cognitive methods to de-escalate distress and panic, evaluate harm;

iv. learn to regulate negative emotion;

v. identify the onset and degrees of dissociation.

14.

It is requested that the supervisors be involved in the pseudo-education sessions about the mother's dissociation and how to identify these episodes.

15.

The mother will provide an authority and direction to such providers of the pseudo-education sessions and the counsellor of the M Mental Health Service is to inform the Independent Children's Lawyer and the 65L Supervisor if the mother does not accept treatment and/or declines medication.

16.

Within fourteen (14) days of this order or within seven (7) days of commencement of treatment by a healthcare provider in accordance with this order, the mother provide a copy of the Family Report of Ms B, and the psychiatric assessments of Dr T, Dr G and Dr K to her treating general medical practitioner, the Family Therapist (employed in accordance with these orders) and the treating medical practitioners at the M Mental Health Service.

17.

The counselling notes from the the treating medical practitioners at the M Mental Health Service are not available for access by the parties by request, subpoena or otherwise without leave of the court. A treating medical practitioner at the M Mental Health Service shall provide a short outline report (as to the parties attendance and outcomes of the treatment) to the Section 65L Supervisor and the Independent Children's Lawyer on how the mother is progressing;

18.

The father will ensure that at the completion of each alternate weekend time that he spends with the child, that all of the child's school items that she has in her possession on the day that he collects her from school, are returned with the child.

19.

Each party shall keep the other and the Independent Children's Lawyer advised of their home address, an email address and emergency contact details and advise the other of any change within twenty four (24) hours for such change.

20.

Each party is to notify the other (by a third party and by email) and the Independent Children's Lawyer if the child is seriously ill or is admitted to hospital at such times as the child is living with that parent and to advise the name and address of the child's treating doctor.

21.

Each of the parties be and are restrained by injunction from discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings, with the child, other than with the leave of the Court.

22.

Each of the parties be and are restrained by injunction from discussing adult issues or the current proceedings with or in the hearing of the child, nor allow another to do so.

23.

Each of the parties be and are restrained by injunction from discussing any matters relevant to any criminal allegations against either party with or in the hearing of the child, nor allow another to do so.

24.

Each of the parties are restrained by injunction from denigrating the other party, the other party's partner or family members, in the presence or hearing of the child, nor allow another to do so.

25.

Each of the parties are restrained by injunction from questioning the child about the personal life of the other parent, or allowing another to do so.

26.

Pursuant to the powers set out in Division 12A of the Family Law Act 1975 (Cth) (“the Family Law Act”) the each of the parties are restrained by injunction parties from commencing any parenting and/or enforcement proceedings without the leave of the court. If a party wishes to commence a proceedings under the Family Law Act, such party shall, on the filing any such application, file a copy of this interim order. The application for leave to proceed is to be heard ex parte. This injunction shall not apply in respect of any notice of appeal arising from these orders or any stay application pursuant to such appeal.

27.

Pursuant to s 65L of the Family Law Act, a Family Consultant (not a Family Consultant who has prepared a report or assessment) is appointed to supervise and/or assist with compliance with these Orders, including:-

A. assisting and supervising the parties in compliance with the parenting orders, as far as practicable;

B. providing the parties and supervisors such assistance as is reasonably requested by such party and/or supervisor in relation to compliance with, and the carrying out of, the parenting orders.

C. This order to apply for two (2) years from the date of this order or such other time as is ordered by the Court.

28.

The Family Consultant, Ms B, shall at the request of the Section 65L Family Consultant, review the arrangements for the child by way of an updated Family Report if the Section 65L Consultant considers they are not in the child’s best interests.

29.

The mother shall, within two (2) business days of notice, advise the Section 65L Family Consultant and the Independent Children's Lawyer in writing when and if she is given a date for the commencement of trial and whether any changes are made to the charge of attempted murder.

30.

The father shall, within two (2) business days of notice, advise the Section 65L Family Consultant and the Independent Children's Lawyer in writing when and if he is charged with any criminal offences relating to the complaint of the mother to the Queensland Police.

31.

Both the mother and the father are within fourteen (14) days to undertake the Intake Process at the C Contact Centre and complete any necessary forms so as to ensure that the handover for the child can occur at the C Contact Centre every alternate Sunday. It is noted that the mother has made enquiries with the C Contact Centre and she has been provided a reference number …76.

32.

The father will not spend any time with the child from Sunday 11 December 2011 to Friday 23 December 2011.

33.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I am not satisfied that the father will facilitate and encourage a close relationship between the child, the mother and her broader family.(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i)either of his or her parents; or (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; The evidence of the family consultant is that the child is missing her mother and her broader family. The father does not seem to have any insight into this concern of the child. He persists with his application to move the child to Melbourne with limited contact to the mother and the maternal family. The mother expressed concern about the change in the child’s behaviour since going into the father’s care. That of course could arise out of numerous matters, not the least of which arises from the mother’s behaviour on … September 2011. However, the family consultant’s concern was to the extent that she recommended that the child return to the mother’s care, initially at a slower rate and later after hearing evidence at the rate suggested by the mother.(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; If the father were permitted to relocate to Melbourne with the child it is unlikely that he would financially support the contact between the mother and the child. The father is in arrears of child support almost the extent of $40,000. I am not satisfied that the father would facilitate such support, even if he had the money to do so. The distance and cost would serve to make any meaningful contact difficult if not impossible.(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; The mother, at most levels, has a good ability to care for the child. Her recent mental illness, dissociation, anxiety and depression have impacted on her ability to care for the child. As I have indicated earlier, that can be managed in the interim. The father has difficulties managing the child as referred to by the family consultant in her report. The family consultant referred to a course of family therapy for the father, to address some of these issues. I am satisfied the father would undertake that therapy. However, on balance, I am satisfied that the mother has a better capacity to provide for the emotional intellectual and physical needs of the child.(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;