VICKERY & VICKERY (No.2) - [2019] FCCA 3951

FEDERAL CIRCUIT COURT OF AUSTRALIA

VICKERY & VICKERY (No.2)

[2019] FCCA 3951

Catchwords:
FAMILY LAW – Parenting – contravention application – where Mother concedes to non-compliance with prior parenting order – where reasonable excuse advanced by the Mother relates to the child’s psychological and emotional health – historic threats of self-harm made by child - where Court finds child holds fears and phobias regarding relationship with father whether irrational or not – application of section 70NAE(5) – paramountcy principle – where Court finds suspension of relevant order appropriate – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss 60CC, 70NBA, 70NEC, Pt.VII

Mental Health Act 2007 (NSW)

Cases cited:

Vickery & Vickery [2018] FCCA 4023

R & Blaue (1975) Cr APP R 271
Stevenson and Hughes (1993) FLC 92-623
Gordon v Gordon [2015] FamCA 616

Other sources:

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Applicant:

MR VICKERY

Respondent:

MS VICKERY

File Number:

WOC 471 of 2016

Judgment of:

Judge Harman

Hearing date:

23 October 2019

Date of Last Submission:

23 October 2019

Delivered at:

Parramatta

Delivered on:

23 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms C. Doosey

Solicitors for the Applicant:

Rossi Simicic Lawyers

Counsel for the Respondent:

Mr D. Maddox

Solicitors for the Respondent:

Matthews Folbigg Pty Ltd

ORDERS

I dismiss all extant applications for Contravention.
I remove from the list of cases awaiting hearing all Applications, save and except the Application Initiating proceedings filed 5 December 2018 and Response thereto filed 31 January 2019.
Pursuant to s.68L, an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.
Proceedings are transferred to the Wollongong Registry of the Federal Circuit Court to be mentioned on 19 February 2020 at 9.30am before Judge M. Neville.
Noted: Consequent upon the above orders, an Application is made for suspension of time.
Pending further order, I suspend all and any parenting orders with respect to the child X which require or provide for X spending time with or communicating with his Father.
Note: Mr Vickery undertakes without admissions and without prejudice to such future relief as he may seek that until 5pm 19 February 2020 he will not attend at K School.

IT IS NOTED that publication of this judgment under the pseudonym Vickery & Vickery (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

WOC 471 of 2016

MR VICKERY

Applicant

And

MS VICKERY

Respondent

REASONS FOR JUDGMENT

These proceedings relate to an Application for Contravention filed on 9 November 2018.
The Application has taken a regrettable time to reach finalisation. However, there has been little, if anything, that could be done to expedite the determination of the matter.
The parties to the proceedings are Mr Vickery, the Applicant, and Ms Vickery, the Respondent.
Mr and Ms Vickery are the parents…

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 VICKERY & VICKERY (No.2)

Details

AGLC: VICKERY & VICKERY (No.2) [2019] FCCA 3951
Case: [2019] FCCA 3951
Decision Date: 23 October 2019

CaseChat Overview and Summary

In *Vickery & Vickery (No.2)*, heard by Judge Harman, the mother conceded to non-compliance with a prior parenting order concerning the child, X. The mother advanced a defence of reasonable excuse, asserting that the child's psychological and emotional health, including historic threats of self-harm and fears and phobias regarding the relationship with the father, necessitated her actions.

The central legal issue before the Court was whether the mother had a reasonable excuse for contravening the parenting order, considering the child's welfare and the application of section 70NAE(5) of the relevant legislation. The Court was required to determine if the paramountcy principle, which dictates that the best interests of the child are the paramount consideration, supported the mother's non-compliance.

Judge Harman found that the child harboured fears and phobias concerning the relationship with the father, irrespective of whether these were rational. Applying section 70NAE(5) and the paramountcy principle, the Court concluded that suspending the relevant parenting order was appropriate in the circumstances. Consequently, the Court dismissed the applications for contravention. Further orders included the appointment of an Independent Children's Lawyer, the transfer of proceedings to the Wollongong Registry, and a pending suspension of all parenting orders requiring the child X to spend time with or communicate with his Father.

Orders

Orders of the court

I dismiss all extant applications for Contravention.

I remove from the list of cases awaiting hearing all Applications, save and except the Application Initiating proceedings filed 5 December 2018 and Response thereto filed 31 January 2019.

Pursuant to s.68L, an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.

Proceedings are transferred to the Wollongong Registry of the Federal Circuit Court to be mentioned on 19 February 2020 at 9.30am before Judge M. Neville.

Noted: Consequent upon the above orders, an Application is made for suspension of time.

Pending further order, I suspend all and any parenting orders with respect to the child X which require or provide for X spending time with or communicating with his Father.

Note: Mr Vickery undertakes without admissions and without prejudice to such future relief as he may seek that until 5pm 19 February 2020 he will not attend at K School.

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.