Woolley and Dickinson - [2014] FCCA 1819

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOOLLEY & DICKINSON

[2014] FCCA 1819

Catchwords:
FAMILY LAW – Parenting – application on father’s liberty to apply after orders for no time-with – child’s best interests – effect on mother’s parenting capacity of orders for direct time-with – whether period of interim supervised time is appropriate and in child’s best interests.

Legislation:

Family Law Act 1975

A & A (1998) FLC 92‑800
Irvine & Irvine [1995] FLC 92-624
PST & CPR [2006] FMCAfam 36
Re Andrew [1996] FLC 92-692
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Re L (contact:- domestic violence) (2000) 2 FLR 334
Rice & Asplund [1979] FLC 90-725
Sedgley & Sedgley [1995] FLC 92-623

Applicant:

MR WOOLLEY

Respondent:

MS DICKINSON

File Number:

DGC 4171 of 2008

Judgment of:

Judge McGuire

Hearing dates:

4 & 5 June 2014

Date of Last Submission:

5 June 2014

Delivered at:

Melbourne

Delivered on:

11 September 2014

REPRESENTATION

Solicitors for the Applicant:

Unrepresented

Counsel for the Respondent:

Mr Allen

Counsel for the Independent Children's Lawyer:

Ms Sweet

Solicitors for the Independent Children's Lawyer:

Macgregor Solicitors

ORDERS

That orders 2, 3, and 5 of the orders of 18 May 2012 be discharged.
That the child X born (omitted) 2005 spend time and communicate with the father as follows:
(a)Supervised at a contact centre for periods of two hours or otherwise as directed by the contact centre on one day per fortnight as arranged and directed by the independent children’s lawyer.
(b)That for these purposes the parents attend for interviews and execute all such documents as directed by the independent children’s lawyer or the relevant contact centre.
(c)That changeovers for the purposes of the above orders take place as directed by the independent children’s lawyer but, in any event, the father be and is hereby restrained from being present at or within 500 metres of the contact centre for 15 minutes prior to the commencement of the time-with and must remove himself by distance of not less than 500 metres immediately upon the designated completion of time-with.
(d)That the father be and is hereby restrained from communicating with or approaching the mother either directly or indirectly save through any solicitors on the record acting for her or through the independent children’s lawyer.
(e)That the father be and is hereby restrained from interrogating X or raising any issues with her in respect of the mother including but not limited to attempting to elicit details of the mother and X’s residential address and/or telephone numbers.
(f)The father be and is hereby restrained from contacting X directly or indirectly including attending at X’s school or any social or extra-curricular events involving X other than within the strict terms of the orders.
(g)That the father communicate by letter, card and/or gift with X as follows:
(i)On not more than one occasion in each fortnight;
(ii)At Easter;
(iii)At Christmas; and
(iv)On X’s birthday.
(h)That the mother provide each of the father’s communications with X to the child but that the mother…

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 Woolley and Dickinson

Details

AGLC: Woolley and Dickinson [2014] FCCA 1819
Case: [2014] FCCA 1819
Decision Date: 11 September 2014

CaseChat Overview and Summary

This matter concerned an application by the father, Mr Woolley, for orders regarding his contact with his child, X, and the mother, Ms Dickinson. The proceedings were before Judge McGuire in the Federal Circuit Court of Australia.

The court was required to determine the nature and extent of contact the father should have with the child, X, given the circumstances of the case. This involved considering the child's best interests and the need for appropriate safeguards in the father's interactions with X and the mother.

Judge McGuire ordered that previous orders be discharged and made new orders concerning the father's contact with X. These new orders stipulated supervised contact at a contact centre, with specific restrictions on the father's presence near the centre during changeovers. The father was also restrained from communicating with or approaching the mother directly, and from interrogating X about her mother or attempting to elicit personal details. Furthermore, the father was prohibited from contacting X directly or indirectly outside the strict terms of the orders, including attending at X's school or events. Communication with X was limited to letters, cards, and gifts on specific occasions, to be sent via a third party. The mother was permitted to inspect, edit, or withhold these communications, with any edited or withheld items to be provided to the independent children's lawyer. The mother was also directed to encourage X to reply to the father's communications, subject to the same conditions. Liberty to apply was granted to the parties and the independent children's lawyer, and the matter was listed for mention and directions.

Orders

Orders of the court

That orders 2, 3, and 5 of the orders of 18 May 2012 be discharged.

That the child X born (omitted) 2005 spend time and communicate with the father as follows:

(a) Supervised at a contact centre for periods of two hours or otherwise as directed by the contact centre on one day per fortnight as arranged and directed by the independent children’s lawyer.

(b) That for these purposes the parents attend for interviews and execute all such documents as directed by the independent children’s lawyer or the relevant contact centre.

(c) That changeovers for the purposes of the above orders take place as directed by the independent children’s lawyer but, in any event, the father be and is hereby restrained from being present at or within 500 metres of the contact centre for 15 minutes prior to the commencement of the time-with and must remove himself by distance of not less than 500 metres immediately upon the designated completion of time-with.

(d) That the father be and is hereby restrained from communicating with or approaching the mother either directly or indirectly save through any solicitors on the record acting for her or through the independent children’s lawyer.

(e) That the father be and is hereby restrained from interrogating X or raising any issues with her in respect of the mother including but not limited to attempting to elicit details of the mother and X’s residential address and/or telephone numbers.

(f) The father be and is hereby restrained from contacting X directly or indirectly including attending at X’s school or any social or extra-curricular events involving X other than within the strict terms of the orders.

(g) That the father communicate by letter, card and/or gift with X as follows:

(i) On not more than one occasion in each fortnight;

(ii) At Easter;

(iii) At Christmas; and

(iv) On X’s birthday.

(h) That the mother provide each of the father’s communications with X to the child but that the mother be firstly permitted to inspect and read the communications and be permitted to edit or not hand such communication to X at her discretion provided that if any such communication is edited or retained by the mother then she forthwith provide those documents to the independent children’s lawyer.

(i) That the mother assist and encourage X to reply to the father’s communication with the same conditions as referred to in order 2(h) above.

(j) That for the purposes of communications with X the father send such through a third party or address as provided by the mother to the independent children’s lawyer.

That there be liberty to the parties, either of them, or the independent children’s lawyer to apply.

That all applications be listed for mention and directions in the Federal Circuit Court at Melbourne on 7 July 2015 at 9.30 am.

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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