VERRELL & TEAGUE (No.3) - [2019] FCCA 1613

FEDERAL CIRCUIT COURT OF AUSTRALIA

VERRELL & TEAGUE (No.3)

[2019] FCCA 1613

Catchwords:
FAMILY LAW – Parenting – allegations of risk – mother’s mental health – delusional disorder – risk to child – whether or not mother’s time should be supervised.

Legislation:

Children, Youth and Families Act 2005 (Vic), s.169(1)

Family Law Act 1975 (Cth), ss.11F, 60B, 60B(1), 60B(2), 60CA, 60CC,

60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1),

65DAA(2), 65DAA(3), 91B.

Cases cited:

Champness and Hanson [2009] FamCAFC 96

Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
Teague & Verrell [2018] FCCA 1861
Teague & Verrell (No.2) [2018] FCCA 3849
Waterford & Waterford [2013] FamCA 33

Applicant:

MR VERRELL

Respondent:

MS TEAGUE

File Number:

MLC 527 of 2016

Judgment of:

Judge Harland

Hearing dates:

8 and 9 May 2019

Date of Last Submission:

9 May 2019

Delivered at:

Melbourne

Delivered on:

12 June 2019

REPRESENTATION

The Applicant appearing in person

The Respondent appearing in person

Counsel for the Independent Children's Lawyer:

Mr McLeod

Solicitors for the Independent Children's Lawyer:

Ebejer Lawyers

ORDERS

That the father have sole parental responsibility for the child [X] born … 2009 (“[X]”).
That [X] live with the father.
That [X] spend supervised time and communicate with the mother as can be accommodated by the Suburb A CommUnity+ Contact Centre or such other supervised contact service as agreed between the parties for a minimum of six times per year.
The mother be responsible for all costs associated with the time spent pursuant to order 3 herein.
The father arrange for [X] to spend time with her sibling group on a minimum of four times per year.
That each parent keep the other parent advised of their address, mobile telephone numbers and email address within 24 hours of any such change.
That the mother be permitted to liaise with [X]’s school to obtain information about [X]’s progress and obtain copies of reports and other documents ordinarily provided to parents and that these orders shall act as an authority for same.
That both parties be permitted to attend any school or extra-curricular activity to which parents are ordinarily invited including but not limited to parent teacher interviews, school concerts, sporting events and the like.
That the parties advise the other of any of [X]’s medical appointments and any changes to same.
That both parties notify each other forthwith and in any case within 24 hours of any serious illness or injury to the child and immediately in the case of any hospitalisation to [X].
That both parties be restrained from:
(a)Denigrating the other or the other’s family in the presence or hearing of [X], or bringing [X] into contact with another person who is.
(b)Discussing parenting disputes and/or issues with or in the presence of [X].
(c)Passing messages through [X].
(d)Involving [X] in any form of dispute between the parties or otherwise.
That the Independent Children’s Lawyer be discharged.

NOTATION
A.Any further application 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 VERRELL & TEAGUE (No.3)

Details

AGLC: Verrell and Teague (No.3) [2019] FCCA 1613
Case: [2019] FCCA 1613
Decision Date: 12 June 2019

CaseChat Overview and Summary

In the matter of VERRELL & TEAGUE (No.3), Judge Harland considered parenting orders concerning a child, [X], born in 2009. The dispute centred on allegations of risk to the child arising from the mother's mental health, specifically a delusional disorder, and whether her time with [X] should be supervised.

The court was required to determine the appropriate parenting arrangements for [X], including who should have parental responsibility and with whom [X] should live. A key issue was whether the mother posed an unacceptable risk to [X] due to her mental health condition, and consequently, the extent and nature of any contact between the mother and child. The court also had to consider the child's relationship with her sibling group and the communication and information sharing between the parents.

Judge Harland's reasoning focused on the paramountcy of the child's welfare and best interests. The court applied principles relating to risk assessment in parenting matters, particularly where mental health issues are present. The decision to grant the father sole parental responsibility and for [X] to live with him, along with supervised time and communication with the mother, reflects a finding that the mother's condition presented a risk that necessitated protective measures. The court also made orders to facilitate the child's relationship with her siblings and to ensure appropriate communication and information exchange between the parents, while also restraining certain behaviours that could be detrimental to the child.

The court ordered that the father have sole parental responsibility for [X] and that [X] live with the father. The mother was to have supervised time and communicate with [X] at a designated contact centre, a minimum of six times per year, with the mother responsible for all associated costs. The father was to arrange for [X] to spend time with her sibling group at least four times per year. Further orders addressed the exchange of contact details, parental access to school information, attendance at school and extra-curricular activities, notification of medical appointments and serious health events, and prohibitions against denigrating the other parent or involving [X] in disputes. The Independent Children's Lawyer was discharged. A notation stipulated that any future application by the mother for further time with [X] must be supported by evidence of attendance at parent counselling, development of capacity to support [X]'s relationship with her father, and her drug usage.

Orders

Orders of the court

That the father have sole parental responsibility for the child [X] born … 2009 (“[X]”).

That [X] live with the father.

That [X] spend supervised time and communicate with the mother as can be accommodated by the Suburb A CommUnity+ Contact Centre or such other supervised contact service as agreed between the parties for a minimum of six times per year.

The mother be responsible for all costs associated with the time spent pursuant to order 3 herein.

The father arrange for [X] to spend time with her sibling group on a minimum of four times per year.

That each parent keep the other parent advised of their address, mobile telephone numbers and email address within 24 hours of any such change.

That the mother be permitted to liaise with [X]’s school to obtain information about [X]’s progress and obtain copies of reports and other documents ordinarily provided to parents and that these orders shall act as an authority for same.

That both parties be permitted to attend any school or extra-curricular activity to which parents are ordinarily invited including but not limited to parent teacher interviews, school concerts, sporting events and the like.

That the parties advise the other of any of [X]’s medical appointments and any changes to same.

10.

That both parties notify each other forthwith and in any case within 24 hours of any serious illness or injury to the child and immediately in the case of any hospitalisation to [X].

11.

That both parties be restrained from:

(a) Denigrating the other or the other’s family in the presence or hearing of [X], or bringing [X] into contact with another person who is.

(b) Discussing parenting disputes and/or issues with or in the presence of [X].

(d) Involving [X] in any form of dispute between the parties or otherwise.

12.

That the Independent Children’s Lawyer be discharged.

NOTATION

A. Any further application by the mother for further time with [X] shall include an affidavit evidencing that:

(a) She has attended parent counselling;

(b) She has developed the capacity to support [X] in her relationship with her father; and

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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