WINTERS & MCGUIGAN - [2016] FamCA 421

FAMILY COURT OF AUSTRALIA

WINTERS & MCGUIGAN

[2016] FamCA 421

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – Where there are two children of the marriage – Where the father alleges the mother has deliberately set out to alienate him from the children – Where the Court orders the father has sole parental responsibility for a year and thereafter the parents have equal shared parental responsibility – Where the Court orders the children live with the father and spend time with the mother

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Ms Winters

RESPONDENT:

Mr McGuigan

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel and Associates

FILE NUMBER:

SYC

2213

2013

DATE DELIVERED:

1 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

12, 13, 14 and 15 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

SOLICITOR FOR THE APPLICANT:

Doolan Callaghan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

Dettman Longworth Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

Brian Samuel and Associates

Orders

IT IS ORDERED

That the children D born … 2008 and C born … 2004, live with the father.
That until 31 May 2017, the father have sole parental responsibility for the children and the father shall ensure that the mother is advised of the children’s progress and of any significant decisions which are made by him in relation to their welfare including but not limited to school enrolment, medical treatment and religious instructions.
That, from 1 June 2017, the parents have equal shared parental responsibility for the children.
That for the purpose of giving effect to Order 1, the mother shall cause the children to be delivered to the consulting rooms of Mr E at a time and date nominated by Mr E and thereafter leave the children with Mr E.
That the father do all acts and things necessary to arrange for each of the children to continue to engage in therapy with Mr E at the Relation Space and to continue with such therapy for such time, and at such frequency as Mr E recommends, noting that nothing in this order prevents Mr E from inviting the mother to attend any therapy session and participate in the therapy.
That from the date of these orders until 31 May 2017 the mother is restrained from approaching, contacting or communicating with the children in any way, including but not limited to contact by telephone, SMS, email or through social media whether at their school, their home or at any activity or place attended by the children, except in accordance with Order 7.
That the mother be permitted to send birthday and Christmas cards and birthday and Christmas presents to the children.
That from 1 December 2016 the children spend time with the mother for two hours each week on Saturday or Sunday (or such other day as is agreed…

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

AGLC: WINTERS & MCGUIGAN [2016] FamCA 421
Case: [2016] FamCA 421
Decision Date: 1 June 2016

CaseChat Overview and Summary

The proceedings before Rees J concerned the parenting arrangements for two children, D (born 2008) and C (born 2004). The dispute centred on the children's living arrangements, parental responsibility, and the nature and extent of contact between the children and their mother. The court was required to make orders regarding these matters, including provisions for therapy and supervised contact.

The court was tasked with determining the primary residence of the children, the allocation of parental responsibility, and the specific terms of the children's time with each parent. Key issues included the duration of sole parental responsibility for the father, the transition to equal shared parental responsibility, and the conditions under which the mother could have contact with the children, including the role of a therapist, Mr E. The court also had to address the financial responsibility for the children's therapy and the communication of court orders and reports to relevant parties.

Rees J made orders that the children would live with the father. Initially, until 31 May 2017, the father was to have sole parental responsibility, with an obligation to keep the mother informed of the children's progress and significant welfare decisions. From 1 June 2017, parental responsibility was to be shared equally. The orders stipulated that the mother would facilitate the children's attendance at therapy with Mr E, and the father would arrange for their continued engagement in this therapy. The mother was significantly restrained from approaching, contacting, or communicating with the children until 31 May 2017, with limited exceptions for sending cards and presents. Supervised contact with the mother was to commence in December 2016 and gradually increase in duration and freedom over subsequent periods, culminating in alternate weekend and holiday time from December 2018. The costs of therapy were to be paid from a joint term deposit account until property settlement, after which the father would be solely responsible. The court also ordered that copies of the reasons and relevant reports be provided to Mr E and any therapist the mother attended, and to the principal of the children's school.

Orders

Orders of the court

IT IS ORDERED

That the children D born … 2008 and C born … 2004, live with the father.

That until 31 May 2017, the father have sole parental responsibility for the children and the father shall ensure that the mother is advised of the children’s progress and of any significant decisions which are made by him in relation to their welfare including but not limited to school enrolment, medical treatment and religious instructions.

That, from 1 June 2017, the parents have equal shared parental responsibility for the children.

That for the purpose of giving effect to Order 1, the mother shall cause the children to be delivered to the consulting rooms of Mr E at a time and date nominated by Mr E and thereafter leave the children with Mr E.

That the father do all acts and things necessary to arrange for each of the children to continue to engage in therapy with Mr E at the Relation Space and to continue with such therapy for such time, and at such frequency as Mr E recommends, noting that nothing in this order prevents Mr E from inviting the mother to attend any therapy session and participate in the therapy.

That from the date of these orders until 31 May 2017 the mother is restrained from approaching, contacting or communicating with the children in any way, including but not limited to contact by telephone, SMS, email or through social media whether at their school, their home or at any activity or place attended by the children, except in accordance with Order 7.

That the mother be permitted to send birthday and Christmas cards and birthday and Christmas presents to the children.

That from 1 December 2016 the children spend time with the mother for two hours each week on Saturday or Sunday (or such other day as is agreed by the parties) in a supervised contact centre or with a professional supervisor for a further period of twelve months.

That from 1 December 2017 the children spend time with the mother each weekend on Saturday or Sunday, as agreed between the parents, commencing at 9 am and concluding at 8 pm.

10. That from 1 December 2018 the children spend time with the mother, during school terms, each alternate weekend from after school on Friday until the commencement of school on Monday and for one half of each school holiday period, in the absence of agreement the second half.

11. That until such time as the property settlement proceedings between the parties have been determined, the cost of the children’s attendance upon Mr E shall be paid from the National Australia Bank term deposit account 14-004-6115 in the joint names of the parties. Thereafter the father shall be responsible for the payment.

12. That the father be permitted to provide a copy of these reasons and the reports of Ms F to Mr E.

13. That the mother be permitted to provide a copy of these reasons and the reports of Ms F to any therapist she attends.

14. That a copy of these Orders be provided to the Principal of any school attended by the children.

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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