Auden and Purtle - [2018] FamCA 70

FAMILY COURT OF AUSTRALIA

AUDEN & PURTLE

[2018] FamCA 70

FAMILY LAW – CHILDREN – PARENTING – where the mother makes consistent and serious allegations of sexual impropriety against the father based upon statement made by very young child – where the expert evidence does not support the conclusion that the mother did not understand what she was doing – where the mother’s view was that she was simply following the advice of experts but that her legal advice was confusing – where during an adjournment period, expert psychological assistance was provided to the mother and that expert was of the view that the mother’s attitude could change – where the family consultant expressed caution about removing the children from the mother albeit the allegations had continued up until that time – where the court is prepared to make interim orders to assess whether or not there has been a culture of change for the benefit of the children and interim orders of a sharing nature should be made in the meantime as they have been extremely successful since the adjourned period.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Conrad & Killen [2017] FamCA 737
Kopel and Ferro [2016] FamCAFC 202
Napier & Hepburn [2006] FamCA 1316; (2006) 36 Fam LR 395

APPLICANT:

Mr Auden

RESPONDENT:

Ms Purtle

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

7449

2013

DATE DELIVERED:

16 February 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

26, 27, 30 October 2017; 6, 7 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roberts / Ms Smallwood

SOLICITOR FOR THE APPLICANT:

Marshalls and Dent and Wilmoth Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Burns

SOLICITOR FOR THE RESPONDENT:

Hutchinson Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cathleen Corridon & Associates

Orders

The final hearing of the parenting applications is further adjourned to 10.00am on 13 June 2018 as a part heard matter for one further day.
Any further affidavit material of either party be filed and served by no later than 4 pm on 1 June 2018.
That until further order, the children B born … 2010 and C born … 2013 live with the father and the mother on a week about basis with the changeover occurring at 6.00pm on the Friday night of each week.
That until further order, there be no change to the existing schooling arrangements for the children.
The reasons for judgment this day be made available to Dr D by the solicitors for the mother.
The reasons for judgment this day be made available to Dr E by the Associate to Justice Cronin.
That if Dr E is required for further cross-examination by any party, she only be required to attend if given at least 14 days’ notice.
That the Independent Children’s Lawyer has liberty to provide a copy of the reasons for judgment this day to the relevant officers of the Department of Health and Human…

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 Auden and Purtle

Details

AGLC: Auden and Purtle [2018] FamCA 70
Case: [2018] FamCA 70
Decision Date: 16 February 2018

CaseChat Overview and Summary

In the matter of Auden and Purtle, Justice Cronin of the Federal Circuit Court of Australia considered parenting applications concerning two children, B and C. The dispute involved the living arrangements and schooling of the children.

The court was required to determine the interim living arrangements for the children, the continuation of their existing schooling arrangements, and the further conduct of the proceedings, including the filing of affidavit material and the attendance of a Dr E for cross-examination.

Justice Cronin ordered that the children live with the father and mother on a week-about basis, with changeovers occurring on Friday evenings. The existing schooling arrangements were to remain unchanged. The final hearing was adjourned to a later date, with directions given for the filing of further affidavit material. The court also made specific orders regarding the provision of its reasons for judgment to Dr D and Dr E, and the conditions for Dr E's attendance for cross-examination. Provisions were also made for the Independent Children’s Lawyer to share the reasons for judgment with relevant government departments and police. The orders included particulars of obligations and consequences of contravention, as set out in an attached Fact Sheet.

Orders

Orders of the court

The final hearing of the parenting applications is further adjourned to 10.00am on 13 June 2018 as a part heard matter for one further day.

Any further affidavit material of either party be filed and served by no later than 4 pm on 1 June 2018.

That until further order, the children B born … 2010 and C born … 2013 live with the father and the mother on a week about basis with the changeover occurring at 6.00pm on the Friday night of each week.

That until further order, there be no change to the existing schooling arrangements for the children.

The reasons for judgment this day be made available to Dr D by the solicitors for the mother.

The reasons for judgment this day be made available to Dr E by the Associate to Justice Cronin.

That if Dr E is required for further cross-examination by any party, she only be required to attend if given at least 14 days’ notice.

That the Independent Children’s Lawyer has liberty to provide a copy of the reasons for judgment this day to the relevant officers of the Department of Health and Human Services and the SOCIT Unit of Victoria Police as is considered appropriate.

That all parties and the Independent Children’s Lawyer have liberty to apply on short notice.

10.

That all parties have leave to issue such subpoenae as they are so advised.

11.

That 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.

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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