VINCENT & WELLS - [2019] FamCA 578

FAMILY COURT OF AUSTRALIA

VINCENT & WELLS

[2019] FamCA 578

FAMILY LAW – CHILDREN – Application by father to spend time with the child – Allegations of drug abuse – Allegations of violence – Allegation that child at an unacceptable risk in the unsupervised care of the father – Orders by Consent that child live with the mother – Orders by Determination – Order that mother and father have equal shared parental responsibility for the child – Order that father spend supervised time with the child building up to unsupervised time – Orders that the parent who is not living or spending time with the child be able to communicate with the child – Specific issues orders

FAMILY LAW – CHILDREN – Change of child’s surname – Application by father seeking registration of the father’s surname on the child’s birth certificate – In circumstances where parties were neither living together nor in an intimate relationship when the child was born – Order that father’s surname be registered on the child’s birth certificate

FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer applied for the parents to each contribute to one half of the costs of representing the child – Where the mother is legally aided and the father is in employment – Order that father should meet one half of the costs of the Independent Children’s Lawyer

Family Law Act 1975 (Cth) s 60CC

J v C [1969] 1 All E.R 824
Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Mr Vincent

RESPONDENT:

Ms Wells

INDEPENDENT CHILDREN’S LAWYER:

Ms Giacomo

FILE NUMBER:

PAC

5705

2011

DATE DELIVERED:

14 March 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:	Benjamin J
HEARING DATE:	12, 13 & 14 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney

SOLICITOR FOR THE APPLICANT:

Anderson Boemi Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Todd

SOLICITOR FOR THE RESPONDENT:

Hinde Ginges Boyd Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAYWER

Ms Giacomo

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid NSW

Orders

All previous parenting orders in respect X born … 2011 (‘the child’) are discharged and vacated.
Ms Wells (‘the mother’) and Mr Vincent (‘the father’) have shared parental responsibility for the child.
BY CONSENT the child live with the mother.
The child spend time with the father as follows:-
a.for one (1) fortnightly visit on the second Sunday after the date of these orders, from 10:00 am to 1:00 pm in Sydney, supervised by C Contact Services, with the first 1 ½ hours to be supervised in accordance with these orders and the last 1 ½ hours to be unsupervised;
b.on the next alternate Sunday and for two (2) further alternate Sundays after that from 10:00 am to 1:00 pm in Sydney, and with the first one (1) hour to be supervised by C Contact Services and the last two (2) hours to be unsupervised;
c.The next alternate Sunday from 10:00 to 1:00 pm in Sydney with…

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 VINCENT & WELLS

Details

AGLC: VINCENT & WELLS [2019] FamCA 578
Case: [2019] FamCA 578
Decision Date: 14 March 2019

CaseChat Overview and Summary

In the matter of *Vincent & Wells*, Benjamin J of the Family Court of Australia considered parenting arrangements for the child, X, born in 2011. The proceedings involved applications by the father, Mr Vincent, for time with the child, and by the father for the child's surname to be registered on the birth certificate. The mother, Ms Wells, had previously consented to orders that the child live with her. Allegations of drug abuse and violence by the father had been raised, leading to concerns about the child's safety in his unsupervised care. The court also addressed the costs of the Independent Children's Lawyer.

The primary legal issues before the court were the determination of parenting orders, including the extent of shared parental responsibility, the specific arrangements for the child to spend time with the father, and the registration of the child's surname. The court was required to consider the child's best interests in light of the allegations made and the existing consent orders. Additionally, the court had to determine the appropriate allocation of the Independent Children's Lawyer's costs between the legally aided mother and the employed father.

Benjamin J made orders discharging previous parenting orders and establishing shared parental responsibility for the child, with the child to live with the mother by consent. The court then detailed a phased approach to the father spending time with the child, commencing with supervised visits and gradually increasing to unsupervised time, including overnight stays and holiday periods. Specific provisions were made for communication between the child and the non-resident parent, and for the parents to refrain from negative commentary about each other in the child's presence. The father was ordered to continue engaging in drug and alcohol counselling, and the mother was permitted to request random drug testing for a period. The court also ordered that the father's surname be registered on the child's birth certificate, noting that the parties were not in an intimate relationship when the child was born.

Finally, the court ordered that the father pay one half of the Independent Children's Lawyer's costs, amounting to $5,607.55, to the Legal Aid Commission of New South Wales. All other extant applications were dismissed.

Orders

Orders of the court

All previous parenting orders in respect X born … 2011 (‘the child’) are discharged and vacated.

Ms Wells (‘the mother’) and Mr Vincent (‘the father’) have shared parental responsibility for the child.

BY CONSENT the child live with the mother.

The child spend time with the father as follows:-

a. for one (1) fortnightly visit on the second Sunday after the date of these orders, from 10:00 am to 1:00 pm in Sydney, supervised by C Contact Services, with the first 1 ½ hours to be supervised in accordance with these orders and the last 1 ½ hours to be unsupervised;

b. on the next alternate Sunday and for two (2) further alternate Sundays after that from 10:00 am to 1:00 pm in Sydney, and with the first one (1) hour to be supervised by C Contact Services and the last two (2) hours to be unsupervised;

c. The next alternate Sunday from 10:00 to 1:00 pm in Sydney with changeover to be supervised by C Contact Services, but time to be otherwise unsupervised;

d. thereafter and until 31 December 2019, in a four (4) week cycle each alternate Saturday from 9:00 am to 4:00 pm:-

i. in D Town on the Saturday of the 2nd weekend, with changeover to occur in D Town; and

ii. In Sydney on the Saturday of the 4th weekend, with changeover to occur in Sydney,

e. thereafter from 1 January 2020 until the commencement of term 1 in 2021 from 9:00 am on Saturday until 2:00 pm on Sunday each alternate weekend with such time to occur at the home of the paternal grandparents for the first six (6) months and being subject to order 4(f). With changeover to occur in Suburb E at a place agreed between the parties and in the event that there is no agreement then at McDonalds Suburb E J Street, Suburb E NSW …;

f. during the period referred to in order 4(e) the child shall spend additional time with the father over the 2020 school holiday periods as follows:-

i. in the first mid-term school holiday in the first weekend the child spends with the father the time will commence from 7.00pm Friday to 2.00pm Sunday,

ii. in the second mid-term school holiday in the first weekend the child spends with the father the time will commence from 7.00pm Friday to 2.00pm Monday,

iii. in the third mid-term school holiday in the first weekend the child spends with the father the time will commence from 7.00pm Friday to 2.00pm Tuesday, and

iv. in the 2020/2021 end of year holiday period the weekends:-

1. the child shall spend time with the father from 11.00am 24 December 2020 until 11.00am 26 December 2020;

2. if that Christmas time is not otherwise the weekend the child spends with the father then it will be in replacement of the previous weekend; and

3. in January 2021 the alternate time will commence from 7.00pm Friday to 2.00pm Tuesday and shall conclude at the latest 4 days before school term in 2021 commences.

g. from the commencement of school term 1 in 2021 the child shall spend time with the father:-

i. during school terms from 7.00pm Friday to 2.00pm Sunday each alternate weekend with changeover to occur in Suburb E at a place agreed between the parties and in the event that there is no agreement then at McDonalds Suburb E J Street, Suburb E NSW ...; and

ii. for the first half of school holidays in odd numbered years and for the second half of the holidays in even numbered years with changeover to occur in Suburb E at a place agreed between the parties and in the event that there is no agreement then at McDonalds Suburb E J Street, Suburb E NSW ..., subject to the child being returned to the mother at the end of the December/January holiday 4 days before school term commences.

Notwithstanding the above orders, in the event that the child will otherwise spend a weekend or time with the father on Mother’s Day, such alternate weekend shall switch to the weekend following Mother’s Day so the child will spend the weekend with the mother on Mother’s Day.

Notwithstanding the above orders, in the event that the child will otherwise spend the weekend with the mother on Father’s Day, such alternate weekend shall switch to that weekend so the child will spend the weekend with the father on Father’s Day.

In relation to Christmas periods, the following shall apply, notwithstanding the above orders:-

a. the child will spend Christmas with the father from 11.00am 24 December 2022 until 11.00am 26 December 2022 and each alternate year thereafter, with changeover to take place at Suburb E, as set out above; and

b. the child will spend Christmas with the mother from 11.00am 24 December 2021 until 11.00am 26 December 2021 and each alternate year thereafter, with changeover to take place at Suburb E, as set out above;

When the child’s time, or changeover, is to be supervised pursuant to these orders:-

h. the father will advise the mother by email seven (7) days prior to the time commencing of the location of the supervision, which will be within ten (10) kilometres of C Contact Services;

i. the cost of supervision and supervised changeover will be met by the father; and

j. for the purposes of orders 4(d), 4(e) and 4(f) the parents will ensure for the first 4 months that changeover is effected between the maternal grandfather and the paternal grandmother or some other agreed grandparent or the father’s present partner in the event that the maternal grandfather or the paternal grandmother are not reasonably available.

The father will ensure that the child is able to contact her mother by telephone during any time she is in his care, and will ensure she has access to a telephone to do this. For this purpose, the mother may nominate a telephone number that the child can call and provide it to the father.

10.

The parent with whom the child is not living or spending time shall have telephone or other electronic communication with the child each Wednesday between 5.00pm and 6.00pm and the other parent will ensure that the other has appropriate telephone numbers and will make the child available.

11.

Each party shall ensure the child’s timely and appropriate attendance at school.

12.

The father and mother are each restrained from using or being affected any illicit drugs while the child is in his or her care.

13.

The father continue to engage with an appropriate therapist for the purpose of drug and alcohol counselling for as long as the therapist deems such engagement necessary.

14.

For twelve (12) months following the date of these orders, the mother is permitted to request by email from the father no more than three (3) random drug urinalysis tests, and upon receiving an email request from the mother, the father is to submit to a chain of custody drug urinalysis test at his own expense within forty eight (48) hours and provide a copy of the results by email to the mother within forty eight (48) hours of him receiving them.

15.

Each parent is restrained from speaking about the other parent or members of their family or household in a negative, derogatory or offensive manner in the presence or hearing of the child, and will remove the child from the presence or hearing of any third party that does so.

16.

Each party will forthwith and contemporaneously with the event advise the other of any significant illness or injury requiring hospitalisation or specialist medical appointment relating to the child, and will provide all consents, authorities and instructions to allow each parent to be advised with respect to any treatment and to visit her if hospitalised.

17.

Within seven (7) days of these orders being made, the mother will contact a family therapist/counsellor for the purposes of arranging and attending appointments for counselling:-

k. for the child, to support her to:-

i. build her relationship with her father;

ii. build her relationship with the paternal grandparents; and

iii. make the transition from supervised time to increasing unsupervised time (including overnight time) with the father in accordance with these orders.

l. for herself (the mother), to assist her to:-

i. support the child’s relationship with her father and the child building that relationship;

ii. support the child’s relationship with the paternal grandparents and the child building that relationship; and

iii. support the child with the transition from supervised time to increasing unsupervised time (including overnight time) with the father in accordance with these orders.

m. Leave is granted to the parents and/or the Independent Children’s Lawyer to provide to any counsellor or therapist engaged with either of the parents or the child, and the child’s school, with:-

i. a copy of these orders, and any reasons for decision;

ii. a copy of the report of the Single Expert Dr F dated 14 April 2018; and

iii. a copy of the Family Report dated 22 May 2017.

18.

For the purpose of any communication required relating to the child and pursuant to these orders, each party will within seven (7) days provide the other with a current email address (and will notify the other party of any changes to their email address within seven (7) days).

19.

Within twenty eight (28) days the parties each do all acts and complete all necessary forms to enable the father’s name to be entered on the Register of Births, Deaths & Marriages as the child’s father, and that the father be responsible for any fee associated with the registration and issue of amended birth certificate for each of the parents and in the name of the child set out above.

20.

The mother will arrange for the child to attend the office of the Independent Children's Lawyer at an appropriate time on Friday 22 March 2019 and IT IS REQUESTED that the Independent Children's Lawyer explain these orders to the child including that the order she live with the mother was made by consent and with the Court’s approval.

21.

The father pay to the Legal Aid Commission of New South Wales the sum of five thousand six hundred and seven dollars and fifty five cents ($5,607.55) within ninety (90) days of the date of this order (being one half of the costs of the Independent Children’s Lawyer legal fees in respect of these proceedings.

22.

All extant applications be dismissed except costs applications, if any, which are to be dealt with in accordance with the Family Law Rules 2004 (Cth).

23.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

24.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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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