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ALLENBY & ALLENBY

Case [2012] FamCA 1083 21 December 2012

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FAMILY COURT OF AUSTRALIA

ALLENBY & ALLENBY

[2012] FamCA 1083

FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – allegations of violence – allegations of mental health issues – allegations of threats of filicide – order that child live with mother – order that mother have sole parental responsibility for the child – order that father spend no time with the child – order that father have limited written communication with the child

Family Law Act 1975 (Cth) s 60CC

Heath v Hemming (No 2) [2011] FamCA 749
Hartford and Ansilda [2009] FamCA 23
McCall & Clark (2009) FLC 93-405
Lindsey & Baker [2007] FamCA 1037
Grant v Downs (1976) 135 CLR 674
Re Bell: Ex parte Lees (1980) 146 CLR 141
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49

APPLICANT:

Mr Allenby

RESPONDENT:

Ms Allenby

INDEPENDENT CHILDREN’S LAWYER:

David Lewis

FILE NUMBER:

BRC

6847

2010

DATE DELIVERED:

21 December 2012

PLACE DELIVERED:

Hobart

PLACE HEARD:

G Town

JUDGMENT OF:

Benjamin J

HEARING DATE:

19, 20, 21 and 23 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Davies

SOLICITOR FOR THE APPLICANT:

Vomina Law

COUNSEL FOR THE RESPONDENT:

Mr Walker

SOLICITOR FOR THE RESPONDENT:

Walker Henderson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr David Lewis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

David Lewis

Orders

All previous parenting and injunctive orders in relation to B born … May 2009 (“the child”) and Ms Allenby (“the mother”) are discharged and replaced with the following orders.
The child shall live with the mother.
The mother shall have sole parental responsibility in relation to the child.
The mother shall promptly keep Mr Allenby (“the father”) informed of any major issues in relation to the child’s education, health, welfare and development; including forwarding to the father annual school photographs of the child, copies of the child’s school reports and newsletters.
Subject to these orders, the father is entitled to have communication with the child’s schools and teachers to keep him appraised of the child’s education.
The father and members of his family are permitted to forward to the child letters, cards and presents (including for birthdays, Fathers Day, Christmas, and Easter). The mother is permitted to read and examine all such material and is entitled (on reasonable grounds) to withhold material from the child provided the mother informs the sender of the reasons in writing within a prompt period of time. The mother shall otherwise promptly give such material to the child. The mother shall forward to the father and/or members of his family any letters, cards or drawings the child wishes to forward to the father and/or members of his family.
The father shall not spend any time with or further communicate with the child except as agreed between the parties or otherwise as ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
Neither party shall denigrate the other party or members of the other…

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 ALLENBY & ALLENBY

Details

AGLC: ALLENBY & ALLENBY [2012] FamCA 1083
Case: [2012] FamCA 1083
Decision Date: 21 December 2012

CaseChat Overview and Summary

In the matter of ALLENBY & ALLENBY, Benjamin J of the Family Court of Australia made orders concerning the parenting of a child born in May 2009, and the mother, Ms Allenby, and the father, Mr Allenby. The dispute involved the arrangements for the child's living situation, parental responsibility, communication between the parents and the child, and injunctive relief.

The court was required to determine the primary living arrangements for the child, the allocation of parental responsibility, the extent of communication and information sharing between the parents regarding the child's welfare, and the conditions under which the father could communicate with the child. Additionally, the court considered the need for injunctive orders to protect the mother and the child, and the consequences of contravening the orders made.

Benjamin J ordered that the child live with the mother and that the mother have sole parental responsibility. The father was to be kept informed of major issues concerning the child's education, health, welfare, and development, and was permitted limited communication with the child's schools. The father and his family could send letters and presents to the child, subject to the mother's right to withhold material on reasonable grounds. Crucially, the father was restrained from spending any time with or further communicating with the child except by agreement or court order. The court also imposed significant injunctive orders restraining the father from approaching within 100 meters of the mother's residence, place of employment, and the child's educational facilities. The orders incorporated a fact sheet detailing obligations, consequences of contravention, and assistance for compliance, pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth).

Orders

Orders of the court

All previous parenting and injunctive orders in relation to B born … May 2009 (“the child”) and Ms Allenby (“the mother”) are discharged and replaced with the following orders.

The child shall live with the mother.

The mother shall have sole parental responsibility in relation to the child.

The mother shall promptly keep Mr Allenby (“the father”) informed of any major issues in relation to the child’s education, health, welfare and development; including forwarding to the father annual school photographs of the child, copies of the child’s school reports and newsletters.

Subject to these orders, the father is entitled to have communication with the child’s schools and teachers to keep him appraised of the child’s education.

The father and members of his family are permitted to forward to the child letters, cards and presents (including for birthdays, Fathers Day, Christmas, and Easter). The mother is permitted to read and examine all such material and is entitled (on reasonable grounds) to withhold material from the child provided the mother informs the sender of the reasons in writing within a prompt period of time. The mother shall otherwise promptly give such material to the child. The mother shall forward to the father and/or members of his family any letters, cards or drawings the child wishes to forward to the father and/or members of his family.

The father shall not spend any time with or further communicate with the child except as agreed between the parties or otherwise as ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).

Neither party shall denigrate the other party or members of the other party’s family to the child or in the presence of the child, nor allow others to do so.

Each party shall keep the other advised at all times of their residential address, contact telephone numbers, emergency contact numbers and provide the other party with any new information within seven (7) days of any change in the details so provided.

10.

The father is restrained from:-

a. approaching within 100 meters of the mother’s residence at C Street, Suburb D or her place of employment at E Street, Suburb D; and

b. approaching within 100 meters of the child’s school, pre school and/or day care centre.

11.

Pursuant to s 65DA(2) and s 62B 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 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.

12.

All other outstanding applications in a case are dismissed (subject to any costs application made pursuant to the Family Law Rules 2004).

13.

All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

IT IS CERTIFIED

14.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

ALLENBY & ALLENBY [2012] FamCA 1083

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Cases cited in this decision · 12 of 12 shown

Heath & Hemming (No 2)
[2011] FamCA 749 Para 4

…In Heath v Hemming (No 2) [2011] FamCA 749 Kent J set out the legislative approach to parenting orders under Part 7 of the Act, I have endeavoured to address this decision in accordance with that direction. In additions Kent J considered a pathway in determining parenting orders under Part V11 of the Family Law Act…
Hartford & Ansilda
[2009] FamCA 23 Para 6

…As to alleged sexual abuse, Brown J summarised the principles in such determinations in Hartford and Ansilda [2009] FamCA 23, where she said:- 19. The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear…
Lindsey & Baker
[2007] FamCA 1037 Para 1

…In Lindsey & Baker [2007] FamCA 1037 Carmody J said of unacceptable risk:- 78. The so-called unacceptable risk test has become the standard used by the Family Court to achieve a balance between the risk of detriment to a child from sexual abuse and other forms of harm and the possibility of benefit to the child of u…
U v U
[2002] HCA 36 Para 4

…proposals the Court might consider and about which the parties were given an opportunity to be heard. ( AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238) (b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake considera…
Esso Australia Resources Ltd v Federal Commissioner of Taxation
[1999] HCA 67

…[2007] FamCA 1037 Grant v Downs (1976) 135 CLR 674 Re Bell: Ex parte Lees (1980) 146 CLR 141 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49…
AMS v AIF
[1999] HCA 26 Para 4

…e of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. ( AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238) (b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant…
M v M
[1988] HCA 68 Para 6

…ch determinations in Hartford and Ansilda [2009] FamCA 23, where she said:- 19. The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings f…
J v Lieschke
[1987] HCA 4 Para 6

…to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to th…
R v Bell; ex parte Lees
[1980] HCA 26 Para 3

…In Re Bell: Ex parte Lees (1980) 146 CLR 141 the High Court found that there are exceptions to the privilege rather than there being a balancing of the privilege against other interests. His Honour Justice Gibbs found an exemption to the privilege existed at common law and said:-[51] …The privilege will not apply whe…
Grant v Downs
[1976] HCA 63 Para 5

…ions in court which cannot be disclosed.[50] The rational of this head of privilege being, as stated by Stephen, Mason and Murphy JJ in Grant v Downs (1976) 135 CLR 674 at 685:-…
(1951) AC 352
(1951) AC 352 Para 6

…or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make su…
McKee v McKee
(1957) AC 352 Para 6

…gs for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
60CC 2 mentions (from Para 7)
Evidence Act 1995 (Cth)
1 mention
Family Law Rules 2004 (Cth)
1 mention (from Para 12)