ALBERSON & ELZARES - [2020] FCCA 2286

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALBERSON & ELZARES

[2020] FCCA 2286

Catchwords:
FAMILY LAW – Parenting – whether father poses as a unacceptable sexual risk to the child – where the father was convicted for possessing child exploitation material – where father disputes the conviction – where father is assessed as being a moderate risk of offending – whether the best interests of the child served by having contact with the father.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CG, 60B, 61DA, 64B, 65D, 65DAB

Evidence Act 1995 (Cth), s.128

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004

Applicant:

MR ALBERSON

Respondent:

MS ELZARES

File Number:

BRC 8291 of 2019

Judgment of:

Judge Vasta

Hearing dates:

10, 11 and 12 August 2020

Date of Last Submission:

12 August 2020

Delivered at:

Brisbane

Delivered on:

26 August 2020

REPRESENTATION

Counsel for the Applicant:

Dr M Wilson

Solicitors for the Applicant:

BDG Legal

Counsel for the Respondent:

Ms A Frizelle

Solicitors for the Respondent:

Sempre Vero Lawyers

Counsel for the Independent Children’s Lawyer:

Mr J Ashcroft

Solicitors for the Independent Children’s Lawyer:

Dooley Solicitors

ORDERS

That all previous Orders be discharged.
That the Mother have sole parental responsibility for the child X born in 2011 (“the child”).
That the child live with the Mother.
That the child spend no time with the Father.
That the Father is at liberty to communicate with the child by letter on the child’s birthday and at Christmas with the Mother to monitor and approve such communication if satisfied it is in the child’s best interests to receive the communication.
Leave is granted for an Australian passport to issue for the child X born in 2011.
That pursuant to section 11 of the Passports Act 2005 the child X born in 2011 be permitted to leave the Commonwealth of Australia.
That the requirement for the father’s signature on the passport application for the child X born in 2011 be dispensed with and an Australian passport issue for the child.
That the child X born in 2011 be permitted to leave the Commonwealth of Australia alone or in the company of the mother MS ELZARES born in 1971.
That the Mother will facilitate the child to communicate with members of the paternal family, excluding the Father, supervised by the Mother, if she considers supervised communication is necessary, excluding the Father:
(a)When the child requests; and
(b)At other times at the Mother’s discretion.
That the Independent Children’s Lawyer be discharged.

NOTATION:

A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Alberson & Elzares is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF…

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

Case: [2020] FCCA 2286
Decision Date: 26 August 2020

CaseChat Overview and Summary

In the matter of ALBERSON & ELZARES, Judge Vasta of the Federal Circuit and Family Court of Australia considered parenting orders concerning a child. The dispute centred on the father's alleged unacceptable sexual risk to the child, stemming from a conviction for possessing child exploitation material, which the father disputed. The court was required to determine whether contact with the father would serve the child's best interests, particularly in light of a risk assessment indicating a moderate risk of offending by the father.

The court's reasoning focused on the paramount consideration of the child's best interests. Applying principles of family law, the court weighed the father's conviction and the assessed risk against the potential benefits of contact. The court found that the father posed an unacceptable risk to the child, and therefore, contact between the father and the child was not in the child's best interests.

Consequently, the court discharged all previous orders. The mother was granted sole parental responsibility and the child was ordered to live with her. The child was to spend no time with the father. Limited communication by letter was permitted on specific occasions, subject to the mother's monitoring and approval. The court also made orders regarding the child's passport and travel, dispensing with the father's signature and permitting the child to leave Australia. The mother was directed to facilitate supervised communication with the paternal family, excluding the father, at her discretion.

Orders

Orders of the court

That all previous Orders be discharged.

That the Mother have sole parental responsibility for the child X born in 2011 (“the child”).

That the child live with the Mother.

That the child spend no time with the Father.

That the Father is at liberty to communicate with the child by letter on the child’s birthday and at Christmas with the Mother to monitor and approve such communication if satisfied it is in the child’s best interests to receive the communication.

Leave is granted for an Australian passport to issue for the child X born in 2011.

That pursuant to section 11 of the Passports Act 2005 the child X born in 2011 be permitted to leave the Commonwealth of Australia.

That the requirement for the father’s signature on the passport application for the child X born in 2011 be dispensed with and an Australian passport issue for the child.

That the child X born in 2011 be permitted to leave the Commonwealth of Australia alone or in the company of the mother MS ELZARES born in 1971.

10.

That the Mother will facilitate the child to communicate with members of the paternal family, excluding the Father, supervised by the Mother, if she considers supervised communication is necessary, excluding the Father:

(a) When the child requests; and

(b) At other times at the Mother’s discretion.

11.

That the Independent Children’s Lawyer be discharged.

NOTATION:

A. That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

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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