WILDE & FOSTER - [2018] FamCA 502

FAMILY COURT OF AUSTRALIA

WILDE & FOSTER

[2018] FamCA 502

FAMILY LAW – CHILDREN – Best interests – With whom the children live – Where there is evidence of mother’s mental illness – Where father alleges risk to children as a result of that mental illness – Where previous consent orders have been made – Where the mother contends that she did not have the opportunity to properly consider her position before consenting to those orders – Supervised time – Balance between meaningful relationships and protection from harm – Parental responsibility – Presumption of equal shared parental responsibility – Conservative approach in interim proceedings – Independent Children’s Lawyer – Liberty to apply following release of Single Expert Report.

FAMILY LAW – PROPERTY – Exclusive occupation.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 114.

B & B (1993) FLC 92-357
Banks & Banks [2015] FamCAFC 36
Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Fitton & Kimble [2017] FCWA 106
Jurchenko & Foster (2014) FLC 93-598
Jyotisha & Jyotisha and Anor (2016) FamCA 738
McCall & Clark (2009) FLC 93-405
SS & AH [2010] FamCAFC 13
S & S [2002] FamCA 59

APPLICANT:

Mr Wilde

RESPONDENT:

Ms Foster

FILE NUMBER:

SYC 2427 of 2018

DATE DELIVERED:

6 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

18 and 20 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney SC

SOLICITOR FOR THE APPLICANT:

Doolan Wagner Family Lawyers

COUNSEL FOR THE RESPONDENT:

Dr Barnett

SOLICITOR FOR THE RESPONDENT:

Parker Law

ORDERS

The children X, born … 2014 and Y, born … 2017 (collectively “the children”) shall live with the father.
The children shall spend time with the mother:
(a)Each Monday from 12:00 pm until 3:00 pm;
(b)Each Wednesday from 12:00 pm until 3:00 pm;
(c)Each Friday from 11:00 am until 4:00 pm; and
(d)Such other periods of time as may be agreed between the parties in writing.
The mother's time with the children shall be supervised at all times by B Group (or such other professional supervision organisation as the parties may agree upon in writing) and each party shall do all things and sign all documents necessary to facilitate such supervision and the parties shall each pay one half of the costs of such supervision.
The mother's time in accordance with Order 2:
(a)Shall commence by the father or his nominee delivering the children to the supervisor at the mother's residence at the commencement of time; and
(b)Shall conclude by the mother causing the supervisor to deliver the children to the father's residence at the conclusion of the time.
The mother have telephone, Skype or Facetime contact with the child X each Tuesday, Thursday and Sunday at 6:30 pm, with the mother to provide the father with the necessary contact details and the father to facilitate X's participation, including by establishing the necessary connection.
Pursuant to section 68L(2) of the Family Law Act 1975 (“the Act”), the interests of…

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 WILDE & FOSTER

Details

AGLC: WILDE & FOSTER [2018] FamCA 502
Case: [2018] FamCA 502
Decision Date: 6 July 2018

CaseChat Overview and Summary

In the matter of WILDE & FOSTER, McClelland J considered parenting and property disputes between the parties concerning their children, X and Y. The central dispute revolved around the children's living arrangements, with the father alleging a risk to the children due to the mother's mental illness. Previous consent orders had been made, but the mother contended she had not had a proper opportunity to consider her position before agreeing to them. The court also addressed the issue of exclusive occupation of a property.

The court was required to determine the best interests of the children, specifically with whom they should live, and the nature and extent of the time the children should spend with the mother. This involved balancing the importance of maintaining meaningful relationships with the need to protect the children from harm, particularly in light of the allegations concerning the mother's mental health. The court also had to consider the presumption of equal shared parental responsibility and the appropriate approach in interim proceedings, which generally favours a conservative stance. The appointment and role of an Independent Children’s Lawyer and a Single Expert were also key issues.

McClelland J applied the paramount consideration of the children's best interests, acknowledging the presumption of equal shared parental responsibility but recognising that it could be displaced by evidence of risk. The court adopted a conservative approach for interim orders, prioritising the protection of the children. The reasoning led to orders for the children to live with the father, with supervised time for the mother. The court also appointed an Independent Children’s Lawyer and a Single Expert to report on the parenting issues, granting liberty to apply for variation of the parenting orders upon the release of the expert report. In relation to the property dispute, the mother was ordered to vacate the shared residence, with the father granted exclusive occupation.

Orders

Orders of the court

The children X, born … 2014 and Y, born … 2017 (collectively “the children”) shall live with the father.

The children shall spend time with the mother:

(a) Each Monday from 12:00 pm until 3:00 pm;

(b) Each Wednesday from 12:00 pm until 3:00 pm;

(d) Such other periods of time as may be agreed between the parties in writing.

The mother's time with the children shall be supervised at all times by B Group (or such other professional supervision organisation as the parties may agree upon in writing) and each party shall do all things and sign all documents necessary to facilitate such supervision and the parties shall each pay one half of the costs of such supervision.

The mother's time in accordance with Order 2:

(a) Shall commence by the father or his nominee delivering the children to the supervisor at the mother's residence at the commencement of time; and

(b) Shall conclude by the mother causing the supervisor to deliver the children to the father's residence at the conclusion of the time.

The mother have telephone, Skype or Facetime contact with the child X each Tuesday, Thursday and Sunday at 6:30 pm, with the mother to provide the father with the necessary contact details and the father to facilitate X's participation, including by establishing the necessary connection.

Pursuant to section 68L(2) of the Family Law Act 1975 (“the Act”), the interests of the children be independently represented by a lawyer and it is requested that the Legal Aid Commission of New South Wales make arrangements as soon as practicable to secure that independent representation of the children's interests.

The parties provide to the Legal Aid Commission of New South Wales all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

The Independent Children’s Lawyer be granted leave to inspect and copy any subpoena material and the Court file.

Pursuant to Part 15.5 of the Family Law Rules 2004, a Single Expert be appointed to prepare a report in respect of the parenting issues in these proceedings, and:

(a) Forthwith, upon appointment of an Independent Children’s Lawyer, pursuant to the above orders, the parties shall join with the Independent Children’s Lawyer in agreeing upon the Single Expert to be appointed; and

(b) In the event of any dispute as to the identity of the Expert, the terms of their instruction or the payment of their costs, the parties and the Independent Children’s Lawyer shall, forthwith, make arrangements to relist the proceedings for further directions and shall, for such purpose, have liberty to apply to the Court on 7 days’ written notice to the Court and each other.

10.

The parties have liberty to apply in respect of a variation of the parenting orders currently in place, upon release of the Single Expert Report.

11.

Pending further order and within fourteen (14) days of the date of these Orders, the mother shall vacate the property known as and situate at C Street, Suburb D (“the Suburb D property”) and from that date, the father shall be entitled to occupy the Suburb D property to the exclusion of the mother.

12.

Until and upon vacating the Suburb D property, the mother:

(a) Shall maintain the property in good order and condition; and

(b) Shall be, and hereby is, restrained from removing (or from causing or permitting the removal of) any item from the property, save for her personal clothing and effects.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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