Vile and Probszic - [2009] FamCA 25

FAMILY COURT OF AUSTRALIA

VILE & PRABSZIC

[2009] FamCA 25

FAMILY LAW – CHILDREN – in child’s best interests for there to be a radical change - mother to have sole parental responsibility for the child on the condition that father consulted about child’s long term care, welfare and development – mother has history of mental illness but mental health has improved – father displays narcissistic and obsessional personality traits - father expressed concerns for child’s safety whilst in the care of the mother- whether the father’s attitude and personality trials are negatively impacting upon the relationship between the mother and the child

Family Law Act 1975 (Cth)

APPLICANT:

Ms Vile

RESPONDENT:

Mr Prabszic

FILE NUMBER:

SYF

2098

2005

DATE DELIVERED:

28 January 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

1 - 3 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Hedberg

SOLICITOR FOR THE RESPONDENT:

Vincent Verduci & Associates

Orders

The mother have sole parental responsibility of the child … born … October 2001 (“the child”), upon the condition she reasonably consults with the father prior to her making any decision about the child’s long term care, welfare and development. “Reasonably consults” means, prior to making a decision:
1.1.The mother gives written notice to the father of what she is proposing for the child;
1.2.The mother allows reasonable time for the father to respond in writing;
1.3.The mother considers any views expressed by the father; and
1.4.The mother, if she believes it appropriate, enters into further written discussion with the father.
The child live with the mother.
The child spend time with the father as follows:-
3.1.For six months from the date of these orders at Central West Contact Service Centre at such times and at such frequencies as can be accommodated by the centre at the father’s cost (but not on a Sunday) and thereafter;
3.2.After the period referred to in Order 3.1, for a period of three months each Sunday from 9.00 am until 5.00pm and thereafter;
3.3.After the period referred to in Order 3.2, each alternate weekend from after school Friday until before school Monday;
3.4.In the event that Order 3.3 means that the child would spend time on Mother’s Day with his father then the child shall spend the weekend on which Mother’s Day falls with his mother and spend time with his father from after school Friday until before school Monday on the following weekend;
3.5.In the event that Order 3.3 means that the child would not spend time on Father’s Day with his father then the child shall spend the weekend in which Father’s Day falls with his father from after school Friday until before school Monday and not spend time with his father on the following weekend;
3.6.In the event that the child is with his mother on his birthday he will spend three hours with his father on his birthday and in…

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 Vile and Probszic

Details

AGLC: Vile and Probszic [2009] FamCA 25
Case: [2009] FamCA 25
Decision Date: 28 January 2009

CaseChat Overview and Summary

In this matter before Watts J, the dispute concerned the parental responsibility and living arrangements for a child born in October 2001. The orders addressed the allocation of sole parental responsibility to the mother, with specific conditions for consultation with the father regarding long-term decisions, and stipulated that the child would live with the mother.

The court was required to determine the terms of parental responsibility, including the nature of consultation between the parents, and to establish a detailed schedule for the child's time with each parent. Further issues included the child's time with his paternal aunt, the need for therapeutic assessment and compliance with recommendations, and specific prohibitions against the father regarding denigration of the mother and her family, discussing proceedings with the child, and arranging for the child to see health professionals without the mother's consent or a court order, except in emergencies. The court also addressed the attendance of both parents at a post-separation parenting program.

Watts J ordered that the mother have sole parental responsibility, subject to a requirement to reasonably consult with the father in writing before making decisions about the child's long-term care, welfare, and development. The child was ordered to live with the mother, and an extensive schedule for the child to spend time with the father was set out, including provisions for supervised contact initially, progressively increasing to alternate weekends, and specific arrangements for holidays and birthdays. The paternal grandmother and aunt were permitted to be present during the father's time with the child. The child was also to spend time with his paternal aunt under conditions that prevented contact with the father or paternal grandmother. The mother was directed to seek therapeutic recommendations for the child and comply with any such recommendations, and both parents were ordered to attend a post-separation parenting program. The father was restrained from denigrating the mother or her family in the child's presence, discussing the proceedings with the child, or arranging for the child to see health professionals without the mother's consent or a court order, barring emergencies. The orders incorporated a fact sheet detailing obligations, consequences of contravention, and assistance resources.

Orders

Orders of the court

The mother have sole parental responsibility of the child … born … October 2001 (“the child”), upon the condition she reasonably consults with the father prior to her making any decision about the child’s long term care, welfare and development. “Reasonably consults” means, prior to making a decision:

1.1. The mother gives written notice to the father of what she is proposing for the child;

1.2. The mother allows reasonable time for the father to respond in writing;

1.3. The mother considers any views expressed by the father; and

1.4. The mother, if she believes it appropriate, enters into further written discussion with the father.

The child live with the mother.

The child spend time with the father as follows:-

3.1. For six months from the date of these orders at Central West Contact Service Centre at such times and at such frequencies as can be accommodated by the centre at the father’s cost (but not on a Sunday) and thereafter;

3.2. After the period referred to in Order 3.1, for a period of three months each Sunday from 9.00 am until 5.00pm and thereafter;

3.3. After the period referred to in Order 3.2, each alternate weekend from after school Friday until before school Monday;

3.4. In the event that Order 3.3 means that the child would spend time on Mother’s Day with his father then the child shall spend the weekend on which Mother’s Day falls with his mother and spend time with his father from after school Friday until before school Monday on the following weekend;

3.5. In the event that Order 3.3 means that the child would not spend time on Father’s Day with his father then the child shall spend the weekend in which Father’s Day falls with his father from after school Friday until before school Monday and not spend time with his father on the following weekend;

3.6. In the event that the child is with his mother on his birthday he will spend three hours with his father on his birthday and in the event that the child is with his father on his birthday he will spend three hours with his mother on his birthday;

3.7. The child is to spend time with his father from 12.00 noon, 24 December until 12.00 noon, 25 December in the year 2009 and each alternate year thereafter and from 12.00 noon, 25 December until 12.00 noon, 26 December in the year 2010 and each alternate year thereafter;

3.8. The child is to spend time with his mother from 12.00 noon, 25 December until 12.00 noon, 26 December in the year 2009 and each alternate year thereafter and from 12.00 noon, 24 December until 12.00 noon, 25 December in the year 2010 and each alternate year thereafter;

3.9. From the commencement of the 2010 school year for one half of the New South Wales gazetted school holiday period being the first half in the year 2010 and each alternate year thereafter and the second half in the year 2011 and each alternate year thereafter;

3.10. The paternal grandmother and/ or the paternal aunt may be present at any of these times.

At the commencement of time that the father spends with the child, the father is to collect and deliver the child from and to the usual place of residence of the mother unless changeover is to occur at the child’s school or time spent is at the contact centre.

The child spend time with the paternal aunt for a period of six months from the date of these orders each Sunday from 9.00am until 5.00pm provided that during such time the paternal aunt do all things to ensure that the child does not come into contact with the father and/or the paternal grandmother.

The mother attend Dr P with the child to seek Dr P’s recommendation as to whether the child would benefit from therapy and the mother ensure compliance with any recommendations made by Dr P in relation to any therapeutic program recommended for the child.

The mother provide copies of Dr P’s reports, copy of the judgment and orders of the court to any therapist recommended by Dr P.

The father be and is hereby restrained from denigrating the mother or members of the mother’s family in the presence or hearing of, and to, the child.

The father be and is hereby restrained from discussing these proceedings with the child.

10.

The father be and is hereby restrained from doing any acts and things as to cause the child to attend upon any clinical psychologist, psychiatrist, therapist or any other health care professional without the written consent of the mother or an order of the court save and except in the case of an emergency.

11.

The mother and father are to do all things to arrange to attend a post separation parenting program and I request that the lawyers for the wife nominate an appropriate program and facilitate the father’s introduction to that program.

12.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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