Tripp and Tripp - [2011] FamCA 598

FAMILY COURT OF AUSTRALIA

TRIPP & TRIPP

[2011] FamCA 598

FAMILY LAW - CHILDREN – Whether children at risk in the care of either parent – Allegations initially made by the mother that the children were exposed to unacceptable risk of harm in the care of the father – Further allegations by the mother that the paternal grandmother had sexually abused the children – Allegations refuted by the father who alleges the children are being emotionally abused by the mother whilst in her care – Allegations also denied by paternal grandmother – Conversations between the mother and youngest child recorded by the mother.

Family Law Act 1975 (Cth)

Johnson and Johnson (2000) 201 CLR 488
Murray and Tomas and Anor [2011] FamCAFC 81
Antoun v R (2006) 224 ALR 51
RE JRL; ex parte CJL (1986) 161 CLR 342
Brown & Brown [2007] FamCA 493

APPLICANT:

Mr Tripp

RESPONDENT:

Ms Tripp

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

7895

2007

DATE DELIVERED:

28 July 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

22, 23, 24 and 25 March 2010; 18, 21, 28 and 29 June 2010; 20 August 2010; 12 November 2010; 4 and 19 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hausman

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Richards with Mr Richardson SC for part of the hearing

SOLICITOR FOR THE RESPONDENT:

Paltos Briggs

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gillies

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All previous orders with respect to the children of the marriage T born on … May 1998 (T), and B born on … April 2003 (B) (“the children”) be discharged.
The father have sole parental responsibility for the children.
The children live with the father.
In the event that the father proposes:
(a)       changing either of the children’s schools
(b)       changing the children’s permanent residence
(c)       either child having non-emergency surgical treatment or
(d)       any other major decisions in the children’s lives
he shall, at least 14 days prior to that event, save in the case of an emergency, advise the mother in writing, so that the mother might have the opportunity of either conveying her agreement or, in the event she does not agree, of her views and reasons for them.
The children shall spend time with the mother as follows:
(a)for a period of six months commencing six weeks after the making of these orders, each Sunday from 10.00 am to 5.00 pm and weekly thereafter, such time to be supervised by P Contact Centre or such other supervision agency as agreed upon between the parties in consultation with the Independent Children’s Lawyer and such supervisions to be at the mother’s cost
(b)for a period of three months thereafter each Sunday from 10.00 am to 5.00 pm, such time to be unsupervised if so recommended by such Single Expert as agreed upon between the parties and in the absence of agreement as nominated…

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 Tripp and Tripp

Details

AGLC: Tripp and Tripp [2011] FamCA 598
Case: [2011] FamCA 598
Decision Date: 28 July 2011

CaseChat Overview and Summary

This matter concerned the father and mother of two children, T and B. The court was required to make orders regarding the children's living arrangements, parental responsibility, and time spent with each parent. The proceedings also involved allegations concerning the late paternal grandmother and the children's therapeutic needs.

The court was tasked with determining the primary caregiver for the children, the allocation of parental responsibility, and the specific arrangements for the children's time with each parent. Further issues included the provision of therapeutic support for the children, the role of the Independent Children's Lawyer, and the communication protocols between the parents regarding the children's welfare and decision-making. The court also had to consider orders to protect the children from parental conflict and inappropriate questioning.

Fowler J ordered that the father have sole parental responsibility for the children, and that the children live with him. Previous orders concerning the children were discharged. The mother's time with the children was to commence with supervised contact for a period of six months, transitioning to unsupervised contact if recommended by a single expert, and thereafter to alternate weekends. The father was directed to engage a psychologist to provide therapeutic support to the children concerning their changed living arrangements, their relationship with their mother, allegations regarding their late paternal grandmother, and their adjustment to her death. Both parents were restrained from denigrating each other and from discussing the children's therapy sessions without consent. The Independent Children's Lawyer was to continue to represent the children for twelve months, and a Family Consultant was to explain the orders to the children.

Orders

Orders of the court

All previous orders with respect to the children of the marriage T born on … May 1998 (T), and B born on … April 2003 (B) (“the children”) be discharged.

The father have sole parental responsibility for the children.

The children live with the father.

In the event that the father proposes:

(a) changing either of the children’s schools

(b) changing the children’s permanent residence

(d) any other major decisions in the children’s lives

he shall, at least 14 days prior to that event, save in the case of an emergency, advise the mother in writing, so that the mother might have the opportunity of either conveying her agreement or, in the event she does not agree, of her views and reasons for them.

The children shall spend time with the mother as follows:

(a) for a period of six months commencing six weeks after the making of these orders, each Sunday from 10.00 am to 5.00 pm and weekly thereafter, such time to be supervised by P Contact Centre or such other supervision agency as agreed upon between the parties in consultation with the Independent Children’s Lawyer and such supervisions to be at the mother’s cost

(b) for a period of three months thereafter each Sunday from 10.00 am to 5.00 pm, such time to be unsupervised if so recommended by such Single Expert as agreed upon between the parties and in the absence of agreement as nominated by the Independent Children’s Lawyer and

(c) thereafter each alternate weekend from 10.00 am Saturday to 5.00 pm Sunday, if so recommended by such Single Expert as referred to in Order 5(b).

The Independent Children’s Lawyer advise P Contact Centre or such other supervising agency of the reason and need for supervision of the mother’s time with the children prior to the first period of supervised time.

For the purpose of facilitation of Orders 5(b) and 5(c), both parties shall do all things necessary to ensure that they and the children attend upon such Single Expert as referred to in Clause 5(b) above, just prior to the expiration of such time as set out in Orders 5(a) and 5(b).

The father shall immediately engage the services of Ms C, Psychologist, for the purposes of providing the children with therapeutic support surrounding, but not limited to:

(a) the change in their living arrangements

(b) the change in their ability to spend time with the mother

(d) the children accommodating the death of their paternal grandmother and their present view of her

(e) their relationship with their mother and

(f) their relationship with their father.

The father shall ensure the children’s attendance on all appointments with

Ms C, including following directions from her about the frequency with which they should occur.

10.

In the event that Ms C requires the attendance of either of the parties at any consultation each party shall ensure that they so attend.

11.

In the event that Ms C requires the attendance of any other person, the parties shall use their best endeavours to ensure the attendance of those third persons.

12.

The parties are restrained from discussing with the children the consultations that the children might have with Ms C without Ms C’s express consent.

13.

In the event that Ms C is unable to provide or continue to provide family therapy in accordance with these Orders the father shall make enquiries of her as to a suitable alternative practitioner and shall do all acts and things to ensure that family therapy, in accordance with these Orders, continues with that alternative practitioner.

14.

Order 7 is not to be overridden by any written advice of Ms C or any other therapeutic provider pursuant to Order 14.

15.

Each party shall keep the other advised, in writing, of any change to their mobile telephone, land line number, email address or residential address at least 14 days prior to any proposed change NOTING the contents of Order 4, which is not to be overridden with this Order.

16.

Both parties are restrained from denigrating the other parent, or a present or past member of their household or family, in the presence or hearing of the children, and shall immediately remove the children from the presence or hearing of any third person who does so.

17.

The mother is restrained from asking the children questions designed to elicit disclosures from them about sexual, physical or emotional abuse during their time in the father’s care.

18.

The mother is restrained from contacting or communicating by any means, including electronically or through third parties, with the children, except in accordance with these Orders.

19.

The mother and father are restrained from recording electronically any conversation between either of them and the children, or either of them, either by telephone or otherwise, nor any conversation the children, or either of them, have with the other party or any other person, save for any video recording made of the children in a school or social setting.

20.

Within seven days of the making of these Orders, the Independent Children’s Lawyer shall provide to Ms C the following documents:

(a) copies of all reports of Dr M

(b) copies of the judgment of the Court and

21.

The parties are to advise all therapists working with the children of the appointment of Ms C and to request that they withdraw their services from the girls in an appropriate manner.

22.

The Independent Children’s Lawyer continue to represent the children for a period of twelve months hereafter.

23.

A Family Consultant from the Court be available with the Independent Children’s Lawyer, following delivery of the judgment and Orders, to explain to the children the Orders and what they mean.

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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