WHYCLIFFE & RAVINSPOLE - [2015] FamCA 275

FAMILY COURT OF AUSTRALIA

WHYCLIFFE & RAVINSPOLE

[2015] FamCA 275

FAMILY LAW – CHILDREN – Best Interests – With whom the child lives – with whom the child spends time – parental responsibility – where the father lives at the Region L – where the mother lives in Suburb N with the child – where the child has not seen the father for over a year – where the father was ordered to spend supervised time with the child – where contact centres withdrew their services due to the father’s behaviour – where the parents do not communicate – where the father has made serious allegations against the Court and others involved in the case –– where the child is at risk of emotional harm in the father’s care – order that the child live with the mother – order that the child spend time with the father supervised by the paternal grandmother on six occasions each year – order that the mother have sole parental responsibility for the child.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Whycliffe

RESPONDENT:

Ms Ravinspole

INDEPENDENT CHILDREN’S LAWYER:

Lindsey Miles

FILE NUMBER:

BRC

6939

2010

DATE DELIVERED:

17 April 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

20, 21 and 22 August 2014

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Cameron of Counsel

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dr Sayers of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kelly Lawyers

Orders

That all previous parenting orders in respect of the child, B born … 2009, (“the child”) be discharged.
That the mother shall have sole parental responsibility in respect of the child.
That the child shall live with the mother.
That the child shall spend time with the father on the last Sunday of every second calendar month commencing on Sunday, 26 April 2015 with all such time to be supervised by the child’s paternal grandmother, Ms H.
That on the first two Sundays that the child spends with the father pursuant to paragraph (4) hereof, the paternal grandmother shall collect the child from the mother at 10:00 am at a place to be agreed between the mother and the grandmother in advance in writing or, in default of agreement, in the carpark at the Suburb I Train Station, Suburb I, and the paternal grandmother shall return the child to the mother at the same place she collected him from the mother that morning at 2:30 pm that day.
That on the third and fourth Sundays that the child spends with the father pursuant to paragraph (4) hereof, the paternal grandmother shall collect the child from the mother at 10:00 am at a place to be agreed between the mother and the grandmother in advance in writing or, in default of agreement, in the carpark at the Suburb I Train Station, Suburb I, and the paternal grandmother shall return the child to the mother at the same…

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.

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Details

Case: [2015] FamCA 275
Decision Date: 17 April 2015

CaseChat Overview and Summary

This matter concerned parenting orders for a child, B, born in 2009, between the parents, Mr Whycliffe (the father) and Ms Ravinspole (the mother). The proceedings were before Forrest J.

The court was required to determine the most appropriate parenting arrangements for the child, considering the welfare and best interests of B. This involved assessing the level of contact the father should have with the child, the conditions under which such contact should occur, and the extent of parental responsibility each parent should hold. The court also considered orders relating to the child's travel and the father's communication and proximity to the mother.

Forrest J discharged all previous parenting orders and made new orders reflecting a significant shift in parental responsibility and contact. The mother was granted sole parental responsibility and the child was ordered to live with her. The father's time with the child was to be limited to supervised contact on the last Sunday of every second calendar month, with the paternal grandmother supervising all such time. The court imposed strict conditions on the father regarding his conduct during transitions, his communication with the mother, and his proximity to the mother and the child's school. The father was also restrained from removing the child from the Commonwealth of Australia, and the child was restrained from leaving Australia except with the mother. The court also made provisions for the mother to travel overseas with the child and to obtain passport renewals without the father's consent.

The court ordered that the Independent Children's Lawyer be discharged. The Australian Federal Police were requested to place the child's name on the Family Law Watchlist until 11 July 2024. The paternal grandmother was to be provided with copies of various affidavits and the court's reasons for judgment and orders. The father was permitted to provide these documents to any counsellor or therapist he might engage in the future. Any future contravention applications were to be listed before Forrest J.

Orders

Orders of the court

That all previous parenting orders in respect of the child, B born … 2009, (“the child”) be discharged.

That the mother shall have sole parental responsibility in respect of the child.

That the child shall live with the mother.

That the child shall spend time with the father on the last Sunday of every second calendar month commencing on Sunday, 26 April 2015 with all such time to be supervised by the child’s paternal grandmother, Ms H.

That on the first two Sundays that the child spends with the father pursuant to paragraph (4) hereof, the paternal grandmother shall collect the child from the mother at 10:00 am at a place to be agreed between the mother and the grandmother in advance in writing or, in default of agreement, in the carpark at the Suburb I Train Station, Suburb I, and the paternal grandmother shall return the child to the mother at the same place she collected him from the mother that morning at 2:30 pm that day.

That on the third and fourth Sundays that the child spends with the father pursuant to paragraph (4) hereof, the paternal grandmother shall collect the child from the mother at 10:00 am at a place to be agreed between the mother and the grandmother in advance in writing or, in default of agreement, in the carpark at the Suburb I Train Station, Suburb I, and the paternal grandmother shall return the child to the mother at the same place she collected him from the mother that morning at 4:00 pm that day.

That from the fifth Sunday that the child spends with the father pursuant to paragraph (4) hereof, the paternal grandmother shall collect the child from the mother at 9:00 am at a place to be agreed between the mother and the grandmother in advance in writing or, in default of agreement, in the carpark at the Suburb I Train Station, Suburb I, and the paternal grandmother shall return the child to the mother at the same place she collected him from the mother that morning at 5:00 pm that day.

That the father shall not accompany the paternal grandmother to the point of collection of the child from his mother and shall not accompany her to the point of return of the child to his mother at either the commencement or conclusion of the child’s time with his father and he shall not come within five hundred metres of the mother at any of those occasions of transition of the child between the mother’s care and the paternal grandmother’s care.

That the father shall not, at any time, denigrate the mother to or within the hearing of the child.

10.

That the father shall not ask the child at any point in time whether he wants to return to his mother’s care or whether he wants to stay in his father’s care or whether he wants to see more of his father.

11.

That the father shall not make any audio or video recordings of the child within the last half hour of the child’s time with him and the father shall not make any audio or video recordings of the child at any time in which the father is questioning the child about his mother, anything that is happening in the mother’s care, or any preference or view the child may have in respect of his living arrangements.

12.

That the father shall not communicate with the mother or attempt to communicate with her by telephone, text message or email.

13.

That the father shall not knowingly enter within five hundred metres of any place of residence or employment of the mother or within five hundred metres of any place the mother is at from time to time.

14.

That the father shall not knowingly enter within five hundred metres of any school at which the child is attending from time to time.

15.

That the mother is at liberty to travel overseas with the child and shall provide the father with twenty-one (21) days written notice, through the paternal grandmother, of the intended date of their departure, the country or countries of their intended travel and the date of their expected return to Australia along with copies of their return airline tickets, and the mother shall further provide the father with written notice, through the paternal grandmother, within seven (7) days of having returned to the Commonwealth of Australia with the child of their return.

16.

That the mother is permitted to obtain passport renewals for the child without the consent of the father and without requiring the father to execute any such passport renewal applications.

17.

(a) That the father, Mr Whycliffe, be restrained and his servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of B born … 2009 (male), from the Commonwealth of Australia.

(b) That B born … 2009 (male) be and is hereby restrained from leaving the Commonwealth of Australia except in the company of his mother, Ms Ravinspole.

18.

That it is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 11 July 2024.

19.

A registrar of this Court’s Brisbane Registry shall provide the paternal grandmother with copies of the following documents for her to read:

(a) The affidavit of Mr D filed 28 March 2011;

(b) The affidavit of Dr F filed 11 August 2011;

(d) The affidavit of Mr D filed 28 February 2012;

(e) The affidavit of Mr J filed 15 August 2014;

(f) All affidavits filed by the father at any time in these proceedings to date;

(g) Exhibit 1 in the proceedings, being the addendum report of Dr K dated 20 November 2013;

(h) Reasons for Judgment published this day;

(i) A sealed copy of these Orders made this day.

20.

That should the father seek counselling or psycho-therapy at any point in the future he is at liberty to provide any such counsellor or therapist with copies of any of the documents referred to in paragraph (19) hereof.

21.

That any Application for Contravention filed in this matter be listed for hearing before his Honour Justice Forrest in the first instance.

22.

That the Independent Children's Lawyer be discharged.

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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