FAMILY COURT OF AUSTRALIA
| WYLIE & WYLIE | [2013] FamCA 426 |
| FAMILY LAW – CHILDREN – CHILD ABUSE |
| Family Law Act 1975 (Cth) s 60CC Family Law Rules 10.15A |
| T & N [2003] FAM CA 1129; M & M [1988] HCA; (1988) FLC 91-979 |
| APPLICANT: | Ms Wylie |
| RESPONDENT: | Mr Wylie |
| INDEPENDENT CHILDREN’S LAWYER | Ms J Meade |
| FILE NUMBER: | TVC | 1088 | of | 2011 |
| DATE DELIVERED: | 7 June 2013 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 11, 12, 13, 14, 15, 18 February, 9, 10 April, 1 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fellows |
| SOLICITOR FOR THE APPLICANT: | Newman Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Middleton |
| SOLICITORS FOR THE RESPONDENT: | Dillon Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Pagani |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Queensland |
Orders
That all previous Orders and Parenting Plans be discharged.
That the father have sole parental responsibility for the major long term issues of the children X born … 2007 and Y born … 2007 (“the children”).
Notwithstanding Order 2 the father shall prior to making any long-term decision concerning the children or either of them:
a.give to the mother 14 days notice in writing of the proposed decision; and
b.invite the mother to express any view that she may have in respect of the proposed decision; and
c.give consideration to any view expressed by the mother; and
d.advise her of the decision he proposes to make.
The father shall not relocate the residence of the children away from Townsville without the consent of the mother or without an order of this Court.
That the children live with the father.
That these Orders are an authority for the medical practitioners, schools or day-care centres attended by the children to give each parent information about the children’s medical and educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
For the purposes of clause 6 the father shall keep the mother informed of the medical and allied health care professionals who are consulted by him in respect of the children.
Both parents shall encourage the children to build meaningful relationships with both the maternal and paternal grandparents and extended families.
The father is to ensure that the children attend counselling through Relationships Australia or such other organisation as recommended by Relationships Australia for such period as it recommended by that or those counsellors.
The mother attend upon her general practitioner for referral to an independent psychiatrist/psychologist which shall not include any witness in these proceedings and shall inform the father and the Independent Children’s Lawyer of the person so engaged.
The Independent Children’s Lawyer be at liberty to provide the following evidence tendered in the trial of this matter to the nominated treating psychiatrist/psychologist referred to above:-
a.Dr BB’s reports and letters
b.Ms CC’s reports and letters
c.Exhibit 12
d.The affidavit of the mother filed 9/4/2013
e.The father’s trial affidavit
f.The…
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- AGLC
- WYLIE & WYLIE [2013] FamCA 426
- Case
- [2013] FamCA 426
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary caregiver for the children, the allocation of parental responsibility for major long-term issues, and the extent of the mother's future involvement in the children's lives. Key issues included the father's sole parental responsibility for long-term decisions, the mother's access to information about the children, the children's residence, and the conditions under which the mother might seek increased time with the children. The court also considered the need for both parents to engage in counselling and for the mother to undergo psychological assessment.
Tree J ordered that all previous parenting orders and plans be discharged. The father was granted sole parental responsibility for major long-term issues concerning the children, subject to a requirement to provide the mother with 14 days' written notice of any proposed decision, invite her views, consider those views, and advise her of the final decision. The children were ordered to live with the father, and the father was prohibited from relocating the children away from Townsville without the mother's consent or a court order. The orders also facilitated information sharing between parents regarding the children's medical and educational progress, encouraged relationships with extended families, and mandated counselling for the children and the father. The mother was ordered to attend counselling and provide reports on her progress, with a pathway established for future applications for increased time with the children contingent on her psychological and psychiatric reports and a Legal Aid Family Dispute Resolution Conference.
Orders
Orders of the court
1.
That all previous Orders and Parenting Plans be discharged.
2.
That the father have sole parental responsibility for the major long term issues of the children X born … 2007 and Y born … 2007 (“the children”).
3.
Notwithstanding Order 2 the father shall prior to making any long-term decision concerning the children or either of them:
a. give to the mother 14 days notice in writing of the proposed decision; and
b. invite the mother to express any view that she may have in respect of the proposed decision; and
c. give consideration to any view expressed by the mother; and
d. advise her of the decision he proposes to make.
4.
The father shall not relocate the residence of the children away from Townsville without the consent of the mother or without an order of this Court.
5.
That the children live with the father.
6.
That these Orders are an authority for the medical practitioners, schools or day-care centres attended by the children to give each parent information about the children’s medical and educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
7.
For the purposes of clause 6 the father shall keep the mother informed of the medical and allied health care professionals who are consulted by him in respect of the children.
8.
Both parents shall encourage the children to build meaningful relationships with both the maternal and paternal grandparents and extended families.
9.
The father is to ensure that the children attend counselling through Relationships Australia or such other organisation as recommended by Relationships Australia for such period as it recommended by that or those counsellors.
10.
The mother attend upon her general practitioner for referral to an independent psychiatrist/psychologist which shall not include any witness in these proceedings and shall inform the father and the Independent Children’s Lawyer of the person so engaged.
11.
The Independent Children’s Lawyer be at liberty to provide the following evidence tendered in the trial of this matter to the nominated treating psychiatrist/psychologist referred to above:-
a. Dr BB’s reports and letters
b. Ms CC’s reports and letters
c. Exhibit 12
d. The affidavit of the mother filed 9/4/2013
e. The father’s trial affidavit
f. The mother’s trial affidavit
g. This order
12.
The children spend time with the mother at the Relationships Australia Children’s Contact Centre once per week as arranged by that Centre in consultation with the parties.
13.
In not less than 4 months from the date of this Order the mother shall obtain from and produce to the father a report from her treating psychologist and/or psychiatrist concerning her psychological and/or psychiatric progress.
14.
Upon compliance with Order 13 the father and mother shall do all acts and things necessary to seek funding from the Legal Aid Office Queensland for the conduct of a Legal Aid Family Dispute Resolution Conference so as to discuss or attempt to resolve the future arrangements for the children to spend time and communicate with the mother.
15.
Each parent shall keep the other informed of their residential postal and email addresses and of a telephone number that may be used for the purpose of communicating between them.
16.
That pursuant to Sections 65DA(2) and 62(B) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and detail of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
17.
That all applications be otherwise dismissed.
18.
That the Independent Children’s Lawyer be discharged.
NOTATION:
A. Without limiting the matters in respect of which the mother may seek psychological and/or psychiatric assistance it is intended that the mother will seek advice upon and counselling in respect of in particular the matters referred to in paragraph 76 of the Report of Ms CC dated 5/2/13 and paragraph 4 of the letter of Ms CC dated 8/3/13.
B. In the event that the mother has the support of her psychologist and psychiatrist in seeking further time including unsupervised time and communication with the children then the mother and father agree that she will be at liberty to apply for further parenting Orders without the need of arguing the threshold pursuant to the authority of Rice and Asplund.
C.
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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