FAMILY COURT OF AUSTRALIA
| WYLES & BATCHELOR | [2018] FamCA 369 |
| FAMILY LAW – CHILDREN – Best interests – Equal time – Substantial and significant time – Meaningful relationship – With whom a child lives and spends time – Where the mother accepts that the father does not present an unacceptable risk to the children – Where the father seeks that the children transition to live in his care full time – Where reunification therapy has been unsuccessful – Where the children hold deeply entrenched but erroneous views about the father and his conduct – Where the mother seeks a further attempt at reunification therapy. |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60 CC(2), 60CC(2A), 60CC(3), 61DA, 65DAA |
| Cotton & Cotton (1983) FLC 91-330 Dennison & Wang [2010] FamCAFC 182 Gillard & Gillard [2015] FamCAFC 169 R v R (children’s wishes) (2002) FLC 93-108 Raby & Fisk [2013] FamCA 436 Wang & Dennison(No. 2) [2009] FamCA 1251 |
| APPLICANT: | Mr Wyles |
| RESPONDENT: | Ms Batchelor |
| FILE NUMBER: | ADC | 4458 | of | 2015 |
| DATE DELIVERED: | 25 May 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 16, 17, 18 and 19 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Pyke QC |
| SOLICITOR FOR THE APPLICANT: | Tolis & Co Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr McQuade |
| SOLICITOR FOR THE RESPONDENT: | Jordan & Fowler Barristers & Solicitors |
Orders
That the mother and father do have equal shared parental responsibility for the children B born … 2007 and C born … 2011 (“the children”).
That the children live with the mother.
That the mother do all things necessary to ensure the children’s attendance with Ms D with a view to the children receiving counselling with the following focus:-
(a) That the father has not physically or sexually abused the children;
(b) That the children are not at risk from the father;
(c)That the children have not been subjected to or exposed to abuse including sexual abuse, neglect or family violence by the father;
(d)That the mother is not at risk of harm from the father;
(e)That the children are not at risk of harm from the paternal grandparents;
(f)That if the children or either of them would wish to see or communicate with the father THEN they are encouraged to raise that with the mother;
(g)The advantage to the children of receiving letters, cards and gifts from the father or the paternal grandparents; PROVIDED
That the counselling with Ms D is to be completed within ninety (90) days of these orders and to be structured as may be determined by Ms D as to content, and the number of sessions required but in any event not less than three (3).
That the mother pay the costs associated with the counselling with Ms D PROVIDED that she be permitted to obtain a Mental Health Care Plan for each of the children for that purpose if available.
That if Ms D is not able to or shall be unwilling to undertake…
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- AGLC
- Wyles and Batchelor [2018] FamCA 369
- Case
- [2018] FamCA 369
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the nature of the parental responsibility to be exercised by each parent, where the children should live, and the specific conditions and restrictions to be imposed on each parent's involvement in the children's lives. This included determining the extent to which the father should have contact with the children, the role of counselling in addressing allegations of abuse, and the geographical limitations on the children's residence. The court also had to consider the father's right to information regarding the children's health and education, and the mother's obligations in facilitating communication and contact.
Berman J ordered that the parents have equal shared parental responsibility for the children, but that the children live with the mother. The court directed that the children undergo counselling to address specific issues, including allegations of abuse by the father and the father's risk to the children and paternal grandparents. The mother was ordered to ensure the children reside within 20 kilometres of the Adelaide CBD and was restrained from relocating them further without the father's consent or removing them from Australia. The mother was also enjoined from denigrating the father, discussing proceedings with the children, or seeking certain medical or therapeutic interventions without the father's consent. The father was granted liberty to liaise with the children's schools and medical practitioners, and the mother was ordered to facilitate communication and contact between the father and the children, including the exchange of letters, cards, and gifts.
Orders
Orders of the court
1.
That the mother and father do have equal shared parental responsibility for the children B born … 2007 and C born … 2011 (“the children”).
2.
That the children live with the mother.
3.
That the mother do all things necessary to ensure the children’s attendance with Ms D with a view to the children receiving counselling with the following focus:-
(a) That the father has not physically or sexually abused the children;
(b) That the children are not at risk from the father;
(c) That the children have not been subjected to or exposed to abuse including sexual abuse, neglect or family violence by the father;
(d) That the mother is not at risk of harm from the father;
(e) That the children are not at risk of harm from the paternal grandparents;
(f) That if the children or either of them would wish to see or communicate with the father THEN they are encouraged to raise that with the mother;
(g) The advantage to the children of receiving letters, cards and gifts from the father or the paternal grandparents; PROVIDED
That the counselling with Ms D is to be completed within ninety (90) days of these orders and to be structured as may be determined by Ms D as to content, and the number of sessions required but in any event not less than three (3).
4.
That the mother pay the costs associated with the counselling with Ms D PROVIDED that she be permitted to obtain a Mental Health Care Plan for each of the children for that purpose if available.
5.
That if Ms D is not able to or shall be unwilling to undertake the counselling THEN in the alternative and pursuant to s 65L of the Family Law Act 1975 (Cth), the Manager of Child Dispute Services for the Family Court of Australia shall nominate a family consultant to supervise compliance by the mother with the parenting orders made herein and to render to the parties such assistance as may be reasonably required to aid in the carrying out of the said orders.
6.
That the mother do cause the children to reside permanently in the metropolitan area of Adelaide within 20 kilometres of the Adelaide CBD.
7.
That the mother be restrained and an injunction granted restraining her from relocating the said children’s place of residence further than 20 kilometres from the Adelaide CBD without the written consent of the father.
8.
That the mother, her servants and agents be restrained and an injunction granted restraining her from taking or attempting to send the children from the Commonwealth of Australia.
9.
That the mother be restrained and an injunction granted restraining her from:-
(a) Denigrating the father in the presence of the children or allowing any other person to do so;
(b) Discussing issues in relation to or arising from the within proceedings other than to do with the proposed counselling;
(c) Taking the children to a psychiatrist, psychologist, counsellor or like professional without the written consent of the father;
(d) Taking the said children or allowing them to undergo any medical examination or therapeutic intervention by any medical practitioner, psychologist, social worker, counsellor or like professional which relates in any way to an allegation that the children have been abused by the father other than as provided for herein;
(e) Changing the said children’s enrolment and attendance from the E School to any other primary school.
(f) Enrolling the children at a high school located further than 20 kilometres from the Adelaide CBD without the written consent of the father.
10.
That the father be permitted to liaise directly with the children’s schools to obtain information about their respective progress and development including but not limited to obtaining copies of their school reports, attending parent/teacher interviews separately to the mother and liaising with the children’s school teachers from time to time.
11.
That the father be at liberty to communicate with, and obtain any information direct from, any general practitioner and/or paediatrician in relation to the said children’s physical health and welfare.
12.
That the mother do all things and sign all documents as may be necessary to forthwith authorise and direct the said children’s general practitioners or other health professionals to communicate with the father.
13.
That the mother do all reasonable things to ensure the father is kept informed in a timely manner, of any issues relating to the health, wellbeing, education or care of the children.
14.
That the mother do facilitate any request of the children or either of them to send letters and/or cards or presents to the father for special occasions, or if they should wish to contact the father directly or make physical contact with him.
15.
That the father be at liberty to communicate with the children by sending cards, letters or gifts to the children posted to the mother’s address, with the mother to supervise the children’s acceptance of any letters, cards or gifts and to ensure that the children do not deface, damage or destroy any letters, cards or gifts received.
16.
That the mother forward an acknowledgement to the father that any letters, cards or gifts sent by him to the children have been received.
17.
That each party keep the other advised as to a contact address for them.
18.
That leave is given for a copy of this judgment to be given to Ms D.
19.
That all proceedings be otherwise dismissed.
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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