BARLOW & SELLERS

Case [2018] FamCA 207

FAMILY COURT OF AUSTRALIA

BARLOW & SELLERS [2018] FamCA 207

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child – Where the mother seeks sole parental responsibility – Where the father seeks equal shared parental responsibility – Where each party seeks that the children live with them – Where there are historical unsubstantiated allegations of physical and sexual abuse – Where the mother has resiled from the allegations of physical and sexual abuse – Whether the mother is likely to present as an emotional risk to the children – Where a child has significant healthcare requirements – Where the father has not engaged with the children’s health practitioners to enable a better understanding of how to manage their needs – Consideration of “meaningful relationship” – Where the mother has not supported a relationship between the father and the children – Where equal time is not practical due to the children’s healthcare needs – Where the children should spend significant and substantial time with the father

FAMILY LAW – CHILDREN – Family consultants – The weight to be given to a Family Assessment Report – The weight to be given to the recommendations of the family consultant
Family Law Act 1975 (Cth) div 12A, ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(3), 61DA, 61DA(2), 65DAA, 69ZN, 69ZT, 69ZT(1), 69ZW, 69ZW(5)
Andrew & Delaine [2009] FamCAFC 182
Baglio & Baglio [2013] FamCA 105
M v M [1988] HCA 68
Mazorski & Albright [2007] FamCA 520
MRR v GR (2010) 240 CLR 461
Sigley & Evor [2011] FamCAFC 22
Vasser & Taylor Black (2007) FLC 93-329
APPLICANT: Ms Barlow
RESPONDENT: Mr Sellers
INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA
FILE NUMBER: ADC 3611 of 2012
DATE DELIVERED: 5 April 2018
PLACE DELIVERED: Adelaide
PLACE HEARD: Adelaide
JUDGMENT OF: Berman J
HEARING DATE: 9 & 10 October 2017, 29 November 2017 and 5 & 6 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Lindsay
SOLICITOR FOR THE APPLICANT: Johnston Withers
COUNSEL FOR THE RESPONDENT: Litigant in Person
SOLICITOR FOR THE RESPONDENT:
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lee
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

  1. That the parties have equal shared parental responsibility for B born … 2010 and C born … 2012 (“the children”).

  2. That the children live with the father for a period of twenty eight (28) days from the date of this order.

  3. That as and from the conclusion of twenty eight (28) days from the date of this order the children live with the mother.

  4. That the children spend time with the father as follows:-

    (a)Each alternate weekend from the conclusion of school Thursday (or 3 pm if a non-school day) until the commencement of school Monday (or 9 am if a non-school day);

    (b)For one half of the short term school holidays from the conclusion of school on the last day of term until 5 pm on the middle Sunday;

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Details
AGLC
BARLOW & SELLERS [2018] FamCA 207
Case
[2018] FamCA 207
Decision Date

CaseChat Overview and Summary

In this matter before Berman J, the parties, the mother and the father, were in dispute regarding the parenting arrangements for their two children. The mother sought sole parental responsibility and that the children live with her, while the father sought equal shared parental responsibility and that the children live with him. The proceedings were complicated by historical, unsubstantiated allegations of physical and sexual abuse made by the mother, from which she had since resiled.

The court was required to determine several key legal issues. These included whether the mother posed an emotional risk to the children, the weight to be given to a Family Assessment Report and the recommendations of the family consultant, and ultimately, what parenting orders would best serve the children's welfare and best interests. The court also had to consider the meaning of a "meaningful relationship" in the context of the children's significant healthcare requirements and the father's engagement with their health practitioners, as well as the mother's role in supporting the father's relationship with the children.

Berman J applied the paramount consideration of the children's welfare and best interests, as established in section 60D of the relevant Act and affirmed in cases such as *M v M*. The court acknowledged that while unsubstantiated allegations of abuse are relevant, the ultimate focus remains on the child's best interests, not solely on resolving the allegations. The court found that equal time was not practical due to the children's healthcare needs, but that the children should spend significant and substantial time with the father. The court also noted the father's lack of engagement with the children's health practitioners and the mother's failure to support the father's relationship with the children.

The court ordered that the parties have equal shared parental responsibility for the children. The children were to live with the father for an initial period of 28 days, after which they would live with the mother. Specific provisions were made for the children to spend time with the father, including alternate weekends, half of school holidays, and specific arrangements for public holidays and birthdays. The orders also included provisions for communication between the parties, school enrolment, and injunctions restraining physical discipline, denigration of the other parent, and certain social media activity. The court also directed the mother to provide the father with contact details for the children's health professionals to facilitate his understanding of their needs.

Orders

Orders of the court

1.

That the parties have equal shared parental responsibility for B born … 2010 and C born … 2012 (“the children”).

2.

That the children live with the father for a period of twenty eight (28) days from the date of this order.

3.

That as and from the conclusion of twenty eight (28) days from the date of this order the children live with the mother.

4.

That the children spend time with the father as follows:-

(a) Each alternate weekend from the conclusion of school Thursday (or 3 pm if a non-school day) until the commencement of school Monday (or 9 am if a non-school day);

(b) For one half of the short term school holidays from the conclusion of school on the last day of term until 5 pm on the middle Sunday;

(c) For one half of the long Christmas school holidays from the conclusion of school on the last day of term until 5 pm on the following Friday and each alternate week thereafter;

(d) For Father’s Day from 9 am until 5 pm if not already in the father’s care PROVIDED that the children spend time with the mother from 9 am until 5 pm on Mother’s Day if not already in the mother’s care;

(e) From 3 pm Christmas Eve until 3 pm Christmas Day in 2018 and each alternate year thereafter PROVIDED that the children will spend time with the mother from 3 pm Christmas Day until 5 pm Boxing Day in each alternate year;

(f) From 3 pm Christmas Day until 5 pm Boxing Day in 2019 and each alternate year thereafter PROVIDED that the children will spend time with the mother from 3 pm Christmas Eve until 3 pm Christmas Day 2019 and each alternate year thereafter;

(g) For Easter 2019 from 5 pm Maundy Thursday until 5 pm Easter Saturday and each alternate year thereafter PROVIDED that the said children will spend time with the mother from 5 pm Easter Saturday until 5 pm Easter Monday in 2019 and each alternate year thereafter;

(h) For Easter 2020 from 5 pm Easter Saturday until 5 pm Easter Monday and each alternate year thereafter PROVIDED that the said children will spend time with the mother from 5 pm Maundy Thursday until 5 pm Easter Saturday in 2020 and each alternate year thereafter;

(i) On each of the children’s birthdays for a period of at least three (3) hours at times to be agreed between the parties if the children are not already with the father PROVIDED that the children will spend time with the mother on each of their birthdays for a period of at least three (3) hours at times to be agreed between the parties if the children are not already with the mother;

(j) Such other times as may be agreed between the parties.

5.

That handovers that do not take place to and from the children’s school shall be at such other place as may be agreed between the parties but failing agreement THEN at the McDonald’s Restaurant, D Street, E Town PROVIDED THAT with not less than 24 hours’ notice each party shall be able to nominate an adult to effect the handover if they are not able to attend.

6.

That communication between the parties be limited to email and text message communication except in the case of emergency.

7.

That the parties shall do all things necessary to ensure that the children are enrolled and remain so enrolled at F School, located at Suburb G, subject to any other agreement of the parties.

8.

That the mother will do all things necessary and provide all such authorisations to the school administration of F School to ensure that the father is entitled to receive all information pertaining to the children, is able to contact the school administration and teachers to discuss the educational requirements and progress of the children and to ensure that the children’s enrolment reflects the father as their parent and as an alternate contact in case of emergency.

9.

That the parties be at liberty to attend all school and extra-curricular activities that parents would ordinarily invited to attend including but not limited to sports days, concerts, parent-teacher interviews and the like PROVIDED that they shall each advise the other in writing of their intentions to attend.

10.

That both parties be at liberty to receive copies of all correspondence from the said children’s school and extra-curricular activities including but not limited to newsletters, bulletins, photographs and the like.

11.

That injunctions be granted and each party be restrained from:-

(a) Physically disciplining the children;

(b) Discussing these proceedings in the presence of the children or allowing anyone else to do so;

(c) Denigrating the other party, the other party’s family or the other party’s partner in the presence of the said children or from allowing anyone else to do so;

(d) Posting on social media about the other party, the other party’s family, the other party’s partner or these proceedings in any way whatsoever;

(e) Taking the children to any psychologist, counsellor, social worker or mental health practitioner without the consent of the other parent first being obtained in writing SAVE AND EXCEPT for the current health professionals involved in the children’s care and any psychologist, medical practitioner, counsellor, therapist or other health professional as may be recommended by any of them;

(f) Changing the children’s school without the prior consent of the other parent first having been obtained in writing.

12.

That the parties forthwith advise the other of the residential address of the children and shall provide to the other contact details including email address and mobile phone numbers.

13.

In the event of a medical emergency involving the said children the parent with whom the children are spending time with shall notify the other parent forthwith and allow the other parent to attend upon the said children.

14.

That the mother shall forthwith advise the father of the contact details of the children’s health professionals and care providers to the intent that the father shall forthwith make contact with those persons to enable him to better understand the needs of the children.

15.

That the appointment of the Independent Children’s Lawyer be discharged.

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

In Vasser & Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honours quoted, with approval, the following passages from M v M (supra) at pages 81,673-75:-In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a Court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings 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 make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right 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 the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, at p 362. There Dixon J said:“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child. …In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case. … (our emphasis)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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