FAMILY COURT OF AUSTRALIA
| TOTHILL & CROWTHER | [2020] FamCA 503 |
| FAMILY LAW – CHILDREN – Best interests – With whom a child lives – Parental responsibility – Previous final parenting orders provide that the child live with the father, spend substantial and significant time with the mother and that the father have sole parental responsibility for the child – Where the father now contends that the risk of harm arising from psychological abuse perpetrated by the mother is so high that it requires limitation and supervision of the mother’s time with the child well into the future – Where the Independent Children’s Lawyer proposes orders in similar terms to that proposed by the father – Where the mother seeks orders for an equal time arrangement and equal shared parental responsibility – Where the Court finds that there is an unacceptable risk that the child will suffer psychological harm in the mother’s care – Where all the evidence supports the making of an order that the father have sole parental responsibility for the child – Orders made largely as sought by the father. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC, 69ZX |
| Betros & Betros [2017] FamCAFC 90 G & C [2006] FamCA 994 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Gorman & Huffman and Anor [2016] FamCAFC 174 Johnson & Page [2007] FamCA 1235 M v M [1988] HCA 68; 166 CLR 69 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 Moose & Moose [2008] FamCAFC 108 Orwell & Watson [2008] FamCAFC 62 Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 Ruth & Hutton [2011] FamCAFC 99 Seaver & Seaver [2015] FamCA 194 Tothill & Crowther [2017] FamCA 460 |
| APPLICANT: | Mr Tothill |
| RESPONDENT: | Ms Crowther |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Commission of South Australia |
| FILE NUMBER: | ADC | 4457 | of | 2013 |
| DATE DELIVERED: | 19 June 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Hannam |
| HEARING DATE: | 10, 11, 12, 13, 14 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Bartel and Hall |
| COUNSEL FOR THE RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Marie Stokes Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Childs |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
The orders made on 30 June 2017 are discharged.
The father has sole parental responsibility for the child, B born … 2011 (“the child”).
The child is to live with the father.
The child is to spend supervised time with the mother on one weekend day per calendar month for four hours. This supervised time is to occur in Adelaide at a location and time to be nominated by the father in consultation with a professional supervisor referred to in Order 5.
That for the purposes of the supervision of the child’s time with the mother:
Continue reading Tothill and Crowther
Sign in free to access the full text
- AGLC
- Tothill and Crowther [2020] FamCA 503
- Case
- [2020] FamCA 503
- Decision Date
CaseChat Overview and Summary
The court's primary focus was on the best interests of the child, B. The reasoning applied involved a careful consideration of the evidence presented, including a Family Report prepared by a Family Consultant. The court determined that the father should have sole parental responsibility for B and that B should live with the father. The mother was to have supervised time with B on one weekend day per calendar month for four hours in Adelaide, with the father to nominate the supervisor and location in consultation with that professional. The mother was to bear the costs associated with this supervised time.
Furthermore, the court granted significant injunctions restraining the mother from various forms of contact with B, including approaching B, attending B's school or extracurricular activities, or causing B to attend any mental health professionals without the father's consent. The father was permitted to change B's residence within a specified region, obtain a passport for B, and make decisions regarding B's name. The father was also ordered to arrange for B to receive therapy from a child and family psychologist. The mother was granted leave to apply to discharge the supervision requirement after 1 January 2023, and otherwise, the parties were restrained from making further parenting applications without leave.
Orders
Orders of the court
1.
The orders made on 30 June 2017 are discharged.
2.
The father has sole parental responsibility for the child, B born … 2011 (“the child”).
3.
The child is to live with the father.
4.
The child is to spend supervised time with the mother on one weekend day per calendar month for four hours. This supervised time is to occur in Adelaide at a location and time to be nominated by the father in consultation with a professional supervisor referred to in Order 5.
5.
That for the purposes of the supervision of the child’s time with the mother:
5.1 The father will appoint one of the following as supervisor:
5.1.1 Mr Q, provisional psychologist (or such other professional as recommended by Mr Q);
5.1.2 A social worker or psychologist from the S Centre (or other professional as recommended by that service); or
5.1.3 Any other professional as may be nominated by the father.
5.2 Handovers will occur at a location nominated by the father in consultation with the professional supervisor appointed by him;
5.3 The father will notify the mother of the location, date and time on which he proposes that the child spend time with her at least two weeks prior to that time occurring;
5.4 The father will pay for all expenses associated with the child’s travel to and from Adelaide; and
5.5 The mother will pay for the costs of and associated with the supervised time with the child including the professional supervisor’s costs and any costs relating to activities during the time which the child spends with the mother.
6.
The father is to provide the professional supervisor with the following:
6.1 The Reasons for Judgment of 30 June 2017;
6.2 These Reasons for Judgment;
6.3 These Orders; and
6.4 The Family Report prepared by Dr R, Family Consultant, dated 26 July 2019.
7.
In the event that a suitably qualified professional becomes available in a location closer to where the mother is living then the father may choose for the time between the child and her mother to occur at that location on the same terms and conditions identified at paragraphs 5.1, 5.2 and 5.5 of these Orders.
8.
Except as set out in paragraph 4, pursuant to section 68B of the Family Law Act 1975 (Cth) the mother and anyone on her behalf is restrained and an injunction is granted restraining the mother and any such person from:
8.1 Contacting or approaching or attempting to approach the child in any way;
8.2 Attending at the child’s school in any capacity whatsoever;
8.3 Causing the child to attend upon any medical practitioner, medical specialist, psychologist, psychiatrist, social worker or any other mental health professional;
8.4 Attending the child’s sporting or extracurricular activities; and
8.5 Discussing with the child anything about the child living with the father or spending time with the mother or anyone else, whether those arrangements may change or the mother’s opinions about those arrangements.
9.
The parties are restrained and injunctions are granted restraining each of them from denigrating any member of the child’s family to or in the presence of the child or permitting anyone else to do so.
10.
The father is to arrange for the child to receive therapy from an experienced child and family psychologist.
11.
The father is permitted to provide to any medical practitioner, medical specialist, psychologist, psychiatrist, social worker or any other mental professional who provides treatment or assistance to the child:
11.1 These Reasons for Judgment of 30 June 2017;
11.2 These Reasons Judgment;
11.3 These Orders; and
11.4 The Family Report prepared by Dr R, Family Consultant, dated 26 July 2019.
12.
The father is to pay for the costs of the child’s attendance on the psychologist.
13.
The father is permitted to:
13.1 Change the child’s residence to any place in Region K;
13.2 Obtain a passport for the child and is not required to obtain the consent of the mother to either obtain a passport or to enable the child to travel outside of the Commonwealth of Australia; and
13.3 Do all things necessary to have the child known as and referred to as B and for this purpose, the father is permitted to provide a copy of this order to any Court or Tribunal exercising jurisdiction under the Births, Deaths and Marriages Registration Act 1996 (SA).
14.
The father is to notify the mother as soon as practicable if the child requires hospitalisation or suffers from any serious illness, accident or emergency.
15.
The mother is granted leave to file and serve an application to seek orders to discharge the requirement for supervision of her time with the child pursuant to these orders only at any time after 1 January 2023.
16.
Except for Order 15, the parties are restrained and an injunction is granted restraining the parties from bringing any further application in relation to parenting matters without leave of the Court.
17.
The appointment of the Independent Children’s Lawyer is discharged.
18.
All applications and responses are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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
Full text does not contain this section.