BACHMEIER & FOSTER - [2011] FamCA 86

FAMILY COURT OF AUSTRALIA

BACHMEIER & FOSTER

[2011] FamCA 86

FAMILY LAW – CHILD ABUSE – Magellan case – child alleges sexual abuse by the father – child’s allegations are unreliable – insufficient evidence to substantiate the allegations – finding that the father does not pose an unacceptable risk of sexual abuse to the child

FAMILY LAW – CHILDREN – Parental responsibility – where the mother is the child’s primary carer – father has never been a primary carer of children – mother opposes a relationship between the child and father – child’s relationship with the father has deteriorated –child enjoys close relationships with maternal grandparents and half-siblings – high level of parental conflict – father proposes the child live with him immediately and spend time with the mother and maternal family – father lacks insight as to how his proposal will negatively affect the child – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to the mother

FAMILY LAW – CHILDREN – with whom a child will live and spend time – child will live with the mother – child will spend infrequent time with the father – this will preserve a rudimentary relationship with the father

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 61DB, 62G(8), 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68P

Marriage of B & B (1993) FLC 92-357
Re C & J (1996) FLC 92-697
Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
Moose v Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Rice & Asplund (1979) FLC 90-725
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Ms Bachmeier

RESPONDENT:

Mr Foster

INDEPENDENT CHILDREN’S LAWYER:

Mr Foat, Ticehurst Foat Lawyers

FILE NUMBER:

NCC

1609

2007

DATE DELIVERED:

23 February 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

31 January 2011 and
1, 2 & 3 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Ryan

SOLICITOR FOR THE APPLICANT:

Adams & Associates

COUNSEL FOR THE RESPONDENT:

Mr Graham

SOLICITOR FOR THE RESPONDENT:

Graeme J Peters Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ticehurst Foat Lawyers

Orders

All former parenting orders relating to the child C (“the child”), born … May 2003, are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that the child spends time with the father for three hours on three occasions annually, being the Saturdays falling closest to 30 March, 30 July, and 30 November each year, with such time to be supervised.
For the purpose of implementing Order 4 hereof:
(a)The supervisor of the time spent by the child with the father shall be staff at “Relationships Australia”, staff at “Life Without Barriers”, Ms WE, Ms TR, or some 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 BACHMEIER & FOSTER

Details

AGLC: BACHMEIER & FOSTER [2011] FamCA 86
Case: [2011] FamCA 86
Decision Date: 23 February 2011

CaseChat Overview and Summary

In the matter of *Bachmeier & Foster*, Justice Austin of the Family Court of Australia considered parenting orders concerning a child born in May 2003. The dispute involved allegations of child abuse by the father, which the court found to be unsubstantiated due to insufficient evidence. The proceedings also addressed the mother's role as the child's primary carer and her opposition to a relationship between the child and the father, which had deteriorated significantly. The court noted the child's strong relationships with maternal family members and the high level of parental conflict.

The court was required to determine whether the presumption of equal shared parental responsibility applied and, if not, how parental responsibility should be allocated. It also had to decide with whom the child would live and the nature and extent of any time the child would spend with the father, considering the father's lack of insight into the potential negative impact of his proposed arrangements on the child. A further issue was the management of the child's relationship with the father in light of the allegations and the existing Apprehended Violence Order.

Justice Austin found that the presumption of equal shared parental responsibility was rebutted. The court reasoned that the child's allegations of sexual abuse by the father were unreliable and unsubstantiated, and that the father did not pose an unacceptable risk of sexual abuse. However, the court also found that the father lacked insight into how his proposed parenting arrangements would negatively affect the child, and that the child's relationship with the father had deteriorated. Consequently, the court allocated sole parental responsibility to the mother, ordered that the child live with the mother, and stipulated that the child would spend infrequent, supervised time with the father three times annually. The court also made detailed orders regarding communication between the child and father, and imposed restraints on denigration and the use of surnames. These orders were noted to prevail over any inconsistency with the existing Apprehended Violence Order.

Orders

Orders of the court

All former parenting orders relating to the child C (“the child”), born … May 2003, are discharged.

The mother shall have sole parental responsibility for the child.

The child shall live with the mother.

Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that the child spends time with the father for three hours on three occasions annually, being the Saturdays falling closest to 30 March, 30 July, and 30 November each year, with such time to be supervised.

For the purpose of implementing Order 4 hereof:

(a) The supervisor of the time spent by the child with the father shall be staff at “Relationships Australia”, staff at “Life Without Barriers”, Ms WE, Ms TR, or some other person or entity nominated by one of those organisations or persons, in that order of priority.

(b) In the event of disagreement between the parties, the mother shall do all such things necessary to engage the supervisor.

(c) Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.

(d) The father shall pay any costs of the supervisor.

(e) The time that is to be spent by the child with the father shall commence at the time designated by the supervisor.

(f) The venue at which the time is to be spent by the child with the father shall be designated by the supervisor, but must be within a 100 kilometres radius of the post office at W, NSW.

(g) The mother shall cause the delivery of the child to, and the collection of the child from, the designated venue at the commencement and conclusion of the time spent by the child with the father.

(h) If on an occasion that the child is due to spend time with the father that time together cannot be accommodated by reason of closure of the venue designated by the supervisor then the time the child would otherwise have spent with the father shall be made-up at another time as close to the original time as can reasonably be arranged.

(i) The mother and father shall comply with all reasonable requests and directions of the supervisor.

(j) Leave is granted to the parties to provide to the supervisor a copy of these orders and a copy of the reasons for judgment.

The parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

(a) By the father being able to send emails, letters, cards, and/or gifts to the child on or about dates proximate to her birthday, his birthday, Father’s Day, and Christmas Day, and

(b) By the mother promptly sending to the father:

i) Written acknowledgement of receipt of the father’s written communication, and

ii) Any emails, letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.

Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

Each party is restrained from permitting the child to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively.

Each party is restrained from causing or permitting the child to be known by any surname other than “Foster”.

10.

The mother shall notify the father of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the child.

11.

The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

12.

Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address, mobile telephone number, and email address.

13.

By reason of an inconsistency between some of these Orders and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act 1975 (Cth), the Registrar of the registry of the Family Court of Australia at Newcastle shall forthwith send a sealed copy of these Orders to:

(a) The Registrar of the Local Court of NSW at Newcastle

(b) The Commissioner of the NSW Police Service

14.

The Independent Children’s Lawyer shall forthwith send to the Director-General of the NSW Department of Human Services copies of:

(a) These Orders

(b) The reasons for judgment

15.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations that 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.

16.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

17.

Costs are reserved for 28 days.

18.

Any and all outstanding applications are dismissed.

Notation

A. Orders 4, 5, 6, and 12 hereof are inconsistent with paragraph 7 of the Apprehended Violence Order made against the father in favour of the child (and the mother, as a protected person in a domestic relationship with the child) by the Local Court of NSW at Newcastle on 17 August 2010, in which case Division 11 of Part VII of the Family Law Act 1975 (Cth) applies and those parenting orders prevail to the extent of any inconsistency.

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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