Yates and Yates - [2009] FamCA 1023

FAMILY COURT OF AUSTRALIA

YATES & YATES

[2009] FamCA 1023

FAMILY LAW – CHILDREN – Interim – with whom a child lives – with whom a child spends time – with whom a child communicates – a second interim hearing in circumstances of dynamic changes in the circumstances of the parties
FAMILY LAW – PROPERTY – Interim/partial property orders – second application need for more than one partial property order prior to final hearing

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422
Strahan & Strahan (Interim property orders) [2009] FamCAFC 166
Harris & Harris [1993] FLC 92-378

Bassi & KB Sales Force Specialists Pty Ltd v Maas [1989] FLC 92-867
Wenz v Archer [2008] 40 FamLR 212

APPLICANT:

Ms Yates

RESPONDENT:

Mr Yates

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

HBC

506

2009

DATE DELIVERED:

27 October 2009

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

21 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Trezise

SOLICITOR FOR THE APPLICANT:

Andrea Trezise

COUNSEL FOR THE RESPONDENT:

Mr Ayliffe

SOLICITOR FOR THE RESPONDENT:

John Munro

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

ADDITIONAL PARENTING ORDERS

Interim parenting order’s numbered 4 and 5 made 1 July 2009 and order 8 made 20 July 2009 are vacated. The remainder of the orders made on those days remain in place and enforceable.
UNTIL FURTHER ORDER
The child, … (born … January 2004), live with the wife as follows:-
a.from 9.00am Saturday 31 October 2009 until 10.00am Sunday
1 November 2009 (supervised);
b.from 10.00am Saturday 7 November 2009 until 2.00pm Saturday
7 November (unsupervised);
c.from 10.00am Saturday 14 November 2009 until 6.00pm Sunday 15 November 2009 (supervised);
d.after school Friday 4 December 2009 until the commencement of school Monday 7 December 2009 (supervised);
e.each Wednesday 9.00am to 3.00pm (supervised except for Wednesday 25 November 2009, 2 December 2009 and 9 December 2009);
f.Such other times as are agreed in writing between the parties.
g.At least one of either, Mr R, Ms H, Mrs B or Dr B supervise the time the child lives with the wife according to these orders where marked ‘supervised’ AND IT IS ORDERED that when the child spends overnight time with the wife the child pursuant to these orders, it be in a home occupied by one or other of the supervisors.
The husband to deliver the child and collect the child from such supervisors address when the time with the wife is to commence. In terms of the times that the child is with the wife unsupervised, the child to be delivered to a supervisor and collected from a supervisor reasonably nominated in advance by the wife.
Both parties sign all documents and do all acts to require and request the Department of Health and Human Services, Disability, Child Youth and Family Services at Launceston to provide any feedback…

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 Yates and Yates

Details

AGLC: Yates and Yates [2009] FamCA 1023
Case: [2009] FamCA 1023
Decision Date: 27 October 2009

CaseChat Overview and Summary

This matter concerned interim parenting orders made by Benjamin J. The proceedings involved a dispute between a husband and wife regarding the living arrangements and time spent with their child.

The court was required to determine the specific interim parenting orders concerning the child's residence and contact with the wife, including the conditions under which such time would occur, particularly regarding supervision. The court also needed to address the involvement of various professionals, including the Independent Children’s Lawyer, health care providers, and a family consultant, in monitoring the child's welfare and the wife's treatment. Furthermore, the court considered the interaction between existing Family Violence Orders and the new parenting arrangements.

Benjamin J vacated certain previous interim parenting orders and made new orders detailing the child's living arrangements with the wife, specifying supervised and unsupervised time, and outlining the responsibilities of both parents in facilitating these arrangements. The court directed that the wife continue with recommended counselling and treatment, providing written authority for her health providers to report to the Independent Children’s Lawyer regarding her engagement with treatment. The court also ordered that particulars of the obligations and consequences of contravening the orders be set out in an attached Fact Sheet. The existing Police Family Violence Order was varied to clarify that it would not prevent the mother from spending time with the child as per the new parenting orders or written agreements.

The proceedings were adjourned to a later date, with directions given for the preparation of an updated family report, the provision of relevant reports to treating professionals and the school, and the possibility of representatives attending by telephone.

Orders

Orders of the court

ADDITIONAL PARENTING ORDERS

Interim parenting order’s numbered 4 and 5 made 1 July 2009 and order 8 made 20 July 2009 are vacated. The remainder of the orders made on those days remain in place and enforceable.

UNTIL FURTHER ORDER

The child, … (born … January 2004), live with the wife as follows:-

a. from 9.00am Saturday 31 October 2009 until 10.00am Sunday

1 November 2009 (supervised);

b. from 10.00am Saturday 7 November 2009 until 2.00pm Saturday

7 November (unsupervised);

c. from 10.00am Saturday 14 November 2009 until 6.00pm Sunday 15 November 2009 (supervised);

d. after school Friday 4 December 2009 until the commencement of school Monday 7 December 2009 (supervised);

e. each Wednesday 9.00am to 3.00pm (supervised except for Wednesday 25 November 2009, 2 December 2009 and 9 December 2009);

f. Such other times as are agreed in writing between the parties.

g. At least one of either, Mr R, Ms H, Mrs B or Dr B supervise the time the child lives with the wife according to these orders where marked ‘supervised’ AND IT IS ORDERED that when the child spends overnight time with the wife the child pursuant to these orders, it be in a home occupied by one or other of the supervisors.

The husband to deliver the child and collect the child from such supervisors address when the time with the wife is to commence. In terms of the times that the child is with the wife unsupervised, the child to be delivered to a supervisor and collected from a supervisor reasonably nominated in advance by the wife.

Both parties sign all documents and do all acts to require and request the Department of Health and Human Services, Disability, Child Youth and Family Services at Launceston to provide any feedback with regard to the counselling of the child to the Independent Children’s Lawyer and direct that any advice and/or direction with regard to the continuation and regularity of the counselling for the child to pass through the Independent Children’s Lawyer.

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details 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.

The Police Family Violence Order made in April 2009 is varied by the addition of the following words:-

This order does not prevent the mother from spending time or living with the child according to any orders made under the Family Law Act 1975 (Cth) and/or any written agreement entered into between the parties with regard to the child living with or spending time with the wife.

The wife continues counselling as recommended by Ms D.

The wife continue to undertake treatment and counselling as recommended by Dr K, Dr N, Dr C and Ms H and give written authority to such health care providers to inform the Independent Children’s Lawyer if treatment is rejected, refused or any appointments are missed. Such authorities to be given within 7 days from the date of this order and within that time provide a copy of the authorities are forwarded to the Independent Children’s Lawyer.

IT IS DIRECTED

These interim parenting proceedings are adjourned to 9.00am on Friday 11 December 2009 at Launceston.

Leave be given for the representatives of the parties to attend by telephone if they wish and provided they give notice to the Court and the other parties.

10.

Leave be given for the Independent Children’s Lawyer and/or the parties to provide copies of the Children’s and Parents Issues Assessment and Single Expert Report to all of the treating health professionals of the wife including but not limited to Dr N, Dr C, Ms H, and Dr K.

11.

A family consultant prepare a short updated family report as to the nature and effect of the additional time the child spends with the wife pursuant to these orders and having regard to the report of the wife’s treating psychiatrist and the single expert.

12.

The Independent Children’s Lawyer provide a copy of these orders and the reasons upon which they are based to the Principal of G School within twenty one (21) days from today’s date.

13.

The Independent Children’s Lawyer provide a copy of the Children’s Parents and Issues Assessment Report dated 21 September 2009 and the report of

Dr A dated 6 October 2009 to the psychologists and therapists caring for the child at the Children’s and Young Persons Program within twenty one (21) days.

14.

The parenting proceedings be adjourned to 9am on Friday 11 December 2009 at Launceston and the Independent Children’s Lawyer and/or Counsel for the husband are given leave to appear via telephone.

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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