Viney and Riley - [2016] FamCA 742

FAMILY COURT OF AUSTRALIA

VINEY & RILEY

[2016] FamCA 742

FAMILY LAW – CHILDREN – Interim parenting orders —need to protect the child from harm — unresolved criminal charges against parent seeking immediate resumption of time — supervision time — time to be conditional on substantial attendance by a third person — desirability of a psychiatric assessment of both parents by an appropriately qualified single expert witness

APPLICANT:

Mr Viney

RESPONDENT:	Ms Riley
INDEPENDENT CHILDREN’S LAWYER:	Ms Lonergan

FILE NUMBER:

MLC

7497

2015

DATE DELIVERED:

30 August 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

12 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Renwick

SOLICITOR FOR THE APPLICANT:

Kenna Teasdale

COUNSEL FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE RESPONDENT:	Self-represented
COUNSEL FOR THE INDEPENDENT CHIDREN”S LAWYER	Ms Sweet

SOLICITOR FOR THE INDEPENDENT CHIDREN”S LAWYER

Victoria Legal Aid

Orders

(as pronounced on 1 September 2016)
IT IS ORDERED THAT:

1.The father have permission to withdraw his contravention application filed on 27 July 2016 and returnable on 6 October 2016.
2.Paragraphs 2 and 3 of the Orders made by the Senior Registrar on 14 December 2015 be and are hereby discharged.
3.That the child B born … 2013 (“the child”) spend time with the father on:-
a)      Sunday from 10.00 am until 6.00 pm commencing 4 September 2016;
b)      Thursday from 3.30 pm until 6.30 pm commencing on 8 September 2016;
c)      Christmas Day from 2.00 pm until 6.00 pm; and
d)      At other times agreed prior in writing and supported by the independent children’s lawyer.
4.That for the purpose of the time spent between the child and the father, such time to be supervised by either of:
a)      Mr C; or
b)      Ms D;
or such other person who is nominated and agreed to by all parties in writing, and in all instances no time shall occur until and unless the supervisor or other nominated person completes an undertaking to the Court to supervise the child’s time with the father (in the form approved this day and which appears as Annexure A to these Orders).
5.The changeovers for time spent will take place inside the MacDonald’s Family Restaurant in Suburb E with either supervisor or other nominated person, to attend changeover in the absence of the father.
6.That each of the parents do all acts and things necessary to undertake assessment and obtain a psychiatric report by Dr F with the father to fund the cost of such psychiatric assessments at first instance and be reimbursed one half of the costs from the mother to be paid from her entitlement (if any) to a final alteration of property interests.
7.That the independent children’s lawyer have liberty to apply for a telephone mention before me in the event that the supervisors (or either of them) is unavailable to facilitate the father’s time in paragraph 3 of this Order for a period of over a week.
8.That until either or both Ms D and…

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 Viney and Riley

Details

AGLC: Viney and Riley [2016] FamCA 742
Case: [2016] FamCA 742
Decision Date: 30 August 2016

CaseChat Overview and Summary

This matter came before Bennett J concerning parenting orders for a child, B. The father sought permission to withdraw a contravention application he had filed. The court was also required to determine the terms of the child's time with the father and the arrangements for supervision and changeovers.

The legal issues before the court included whether to permit the withdrawal of the father's contravention application, the specific terms of the child's time with the father, the identity and role of supervisors for that time, the location of changeovers, and the arrangements for obtaining a psychiatric report concerning the father, including the funding of that report. The court also considered the continued effect of existing orders and the inclusion of a fact sheet detailing the obligations and consequences of contravening the orders.

Bennett J permitted the father to withdraw his contravention application and discharged specific paragraphs of previous orders made by the Senior Registrar. The court then made new orders detailing the child's time with the father, which was to be supervised by nominated individuals who were required to provide undertakings to the court. Changeovers were to occur at a specific location with the supervisor present. The court also ordered the father to fund a psychiatric assessment of himself, with a provision for reimbursement from the mother's property interests. Liberty to apply was granted to the independent children's lawyer in specific circumstances, and until nominated supervisors were available, G Family Services would provide supervision at the father's cost. The court also directed the handling and inspection of communication books and other documents.

Orders

Orders of the court

(as pronounced on 1 September 2016)

IT IS ORDERED THAT:

1. The father have permission to withdraw his contravention application filed on 27 July 2016 and returnable on 6 October 2016.

2. Paragraphs 2 and 3 of the Orders made by the Senior Registrar on 14 December 2015 be and are hereby discharged.

3. That the child B born … 2013 (“the child”) spend time with the father on:-

a) Sunday from 10.00 am until 6.00 pm commencing 4 September 2016;

b) Thursday from 3.30 pm until 6.30 pm commencing on 8 September 2016;

c) Christmas Day from 2.00 pm until 6.00 pm; and

d) At other times agreed prior in writing and supported by the independent children’s lawyer.

4. That for the purpose of the time spent between the child and the father, such time to be supervised by either of:

a) Mr C; or

b) Ms D;

or such other person who is nominated and agreed to by all parties in writing, and in all instances no time shall occur until and unless the supervisor or other nominated person completes an undertaking to the Court to supervise the child’s time with the father (in the form approved this day and which appears as Annexure A to these Orders).

5. The changeovers for time spent will take place inside the MacDonald’s Family Restaurant in Suburb E with either supervisor or other nominated person, to attend changeover in the absence of the father.

6. That each of the parents do all acts and things necessary to undertake assessment and obtain a psychiatric report by Dr F with the father to fund the cost of such psychiatric assessments at first instance and be reimbursed one half of the costs from the mother to be paid from her entitlement (if any) to a final alteration of property interests.

7. That the independent children’s lawyer have liberty to apply for a telephone mention before me in the event that the supervisors (or either of them) is unavailable to facilitate the father’s time in paragraph 3 of this Order for a period of over a week.

8. That until either or both Ms D and Mr C are available, or in the event either are unavailable to undertake supervision pursuant to paragraph 4 above, supervision of the time spent by the child with the father shall be undertaken by G Family Services and the cost of such supervision to be borne solely by the father AND IT IS NOTED that supervision by G Family Services has been confirmed for 4 September 2016.

9. Save as provided for in this Order, the Order made on 14 December 2015 remain in full force and effect.

10. Otherwise, all interim applications be dismissed and this matter be placed in the list of cases awaiting allocation to a judicial docket.

11. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

AND IT IS DIRECTED:

12. That the paginated copy of the communication books as provided by the mother to my Court Officer on 15 August 2016 pursuant to paragraph 4 of the Order made on 12 August 2016 be marked Exhibit “A” and remain on the Court file.

13. That each of the mother, the father and the independent children’s lawyer be provided with a paginated copy of the communication books as provided by the mother to my Court Officer on 15 August 2016 pursuant to paragraph 4 of the Order made on 12 August 2016.

14. That the blue folder envelope from the mother delivered to my Court Officer on 15 August 2016 pursuant to paragraph 4 of the Order made on 12 August 2016 be given to the independent children’s lawyer who can place the communication books with the Subpoenaed Documents Clerk of this Registry, copy anything else, and return the balance of the contents of the envelope to the mother after the father’s practitioner has had an opportunity to see what the mother has delivered.

15. The independent children’s lawyer contact the Proper Officer of Victoria Police and enquire specifically whether Victoria Police have any objection to the documents produced on subpoena being inspected by:-

a) the father;

b) the mother;

c) both parents.

ANNEXURE “A”

UNDERTAKING AS APPROVED BY THE COURT:

A. I am (name of proposed supervisor).

B. I have received and read a copy of the Orders made on 1 September 2016.

C. Pursuant to these orders the father is to have time with the child B born … 2013 (“the child”).

D. I state that I will fully supervise the time until I am no longer required to do so by the Court.

E. I understand that I am to be present at all times that the father is with the child. At no time will I leave the child alone with the father. I will be in the presence and hearing of the child and the father at all times.

F. In the event that the child becomes distressed at any time in relation to the time with the father I will cease the time immediately and return the child to the mother.

G. Should the father, and any other person who is (with my agreement) present:-

i) denigrate the mother in the presence or hearing of the child;

ii) make inappropriate comments in relation to the mother in the presence or hearing of the child;

iii) physically discipline the child;

iv) act in any other way inappropriate towards the child or mother;

I understand that I am to cease time and notify the mother and the independent children’s lawyer by phone and in writing of the relevant behaviour and my concerns.

H. That as supervisor I will take the child to the toilet and attend to all associated arrangements, so that the child is never out of the sight or hearing of myself or another supervisor.

I. I understand the nature and accept my responsibilities as a supervisor and I understand that if I breach this undertaking that there are serious consequences and I may be guilty of contempt of Court and may be punishable by way of fine or imprisonment.

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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