Becket and Peel (No.2) - [2012] FMCAfam 280

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BECKET & PEEL (No.2)

[2012] FMCAfam 280

FAMILY LAW – Parenting – children aged 10 & 12 – where the children lived primarily with the mother for most of their lives until 6 December 2010 –
where the mother failed to protect the children from exposure to family violence and from coming into contact with persons with serious criminal records – where the older child has suffered psychologically as a result of the mother’s enmeshed relationship with him – where the children have been living with the father since 6 December 2010 and spending supervised time with the mother – whether the mother’s time should continue to be supervised – assessment of the mother’s claim that she recognises her past failings and is taking steps to remedy them – whether a restraint on the mother bringing the children into contact with certain named persons or alternatively with all unrelated adult males would sufficiently protect the children – whether the maternal grandparents would be suitable supervisors – where the father seeks sole parental responsibility and the mother seeks equal shared parental responsibility.

Family Law Act 1975, ss.60CC, 61DA, 61DB

B & B (1993) FLC92-357
Becket & Peel [2010] FMCAfam 1424
Moose & Moose (2008) FLC 93-375

Applicant:

MR BECKET

Respondent:

MS PEEL

File Number:

NCC 2190 of 2008

Judgment of:

Terry FM

Hearing dates:

17, 18 & 20 October 2011

Date of Last Submission:

20 October 2011

Delivered at:

Newcastle

Delivered on:

13 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Tregilgas

Solicitors for the Applicant:

Braye Cragg Solicitors

Counsel for the Respondent:

Ms Goodchild

Solicitors for the Respondent:

Neisha Shepherd Solicitor

Solicitor Advocate for the Independent Children’s Lawyer:

Ms O’Rourke

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

All previous parenting orders concerning X born … 1999 and Y born … 2002 are discharged.
The children shall live with the father.
The father shall have sole parental responsibility for the children.
The children shall spend time with the mother:
(a)Until 1 January 2013 for two hours each fortnight supervised by Ms B or some other person agreed between the parties, with the costs of such supervision to be borne by the mother.
(b)Thereafter and until 30 June 2013 for four hours on one day each month and unless otherwise agreed between the parties on the 1^st Sunday of each month;
(c)Thereafter for seven hours on one day each month and unless otherwise agreed between the parties on the 1^st Sunday of each month;
(d)In 2012 and each year thereafter for two hours on Boxing Day;
(e)In 2013 and each year thereafter for four hours on Mother’s Day;
(f)In 2013 and each year thereafter for two hours on each of the children’s birthdays;
(g)At such additional or alternate times as may be agreed between the parents.
Time in accordance with order 4(b) to (f) inclusive shall be subject to the following conditions:
(a)one of the maternal grandparents shall be present at…

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 Becket and Peel (No.2)

Details

AGLC: Becket and Peel (No.2) [2012] FMCAfam 280
Case: [2012] FMCAfam 280
Decision Date: 13 April 2012

CaseChat Overview and Summary

The case of Becket and Peel (No.2) involved a dispute over the parenting arrangements of two children, X and Y, following the separation of their parents. The primary concern was determining the best interests of the children in accordance with section 60CC of the Family Law Act. The court was tasked with balancing the children's need to maintain a meaningful relationship with both parents while also considering the potential for harm from exposure to abuse, neglect, or family violence.

The legal issues before the court included whether the children could maintain a meaningful relationship with their father, despite concerns about the mother's past behaviour and her potential re-partnering with individuals who posed a risk to the children. The court had to assess the credibility of the mother's claims and the reliability of the father's allegations. Additionally, the court needed to decide on the appropriate supervision and conditions for the children's contact with their mother to mitigate any risk of harm.

The court determined that X and Y had a meaningful relationship with their father, which should be preserved. It found that while the children had a relationship with their mother, it was not particularly meaningful and could potentially be harmful if unsupervised. The court was satisfied that there was no risk of abuse or family violence in the care of the father but concluded that unsupervised contact with the mother posed a significant risk of harm. The court ordered that the children would live with the father and have supervised contact with their mother under specific conditions, including the presence of one of the maternal grandparents and restrictions on the mother's contact with certain individuals. The court also imposed various other restrictions and obligations on both parents to protect the children's welfare.

The court made several orders to ensure the children's safety and well-being. These included discharging all previous parenting orders, granting sole parental responsibility to the father, and setting out detailed arrangements for the children's time with their mother, subject to specific conditions. The court also imposed restrictions on both parents to prevent physical punishment, derogatory remarks, and communication of personal issues in the presence of the children. Both parents were required to provide each other with access to the children's health records and keep each other informed of their contact details and any changes.

Orders

Orders of the court

All previous parenting orders concerning X born … 1999 and Y born … 2002 are discharged.

The children shall live with the father.

The father shall have sole parental responsibility for the children.

The children shall spend time with the mother:

(a) Until 1 January 2013 for two hours each fortnight supervised by Ms B or some other person agreed between the parties, with the costs of such supervision to be borne by the mother.

(b) Thereafter and until 30 June 2013 for four hours on one day each month and unless otherwise agreed between the parties on the 1st Sunday of each month;

(c) Thereafter for seven hours on one day each month and unless otherwise agreed between the parties on the 1st Sunday of each month;

(d) In 2012 and each year thereafter for two hours on Boxing Day;

(e) In 2013 and each year thereafter for four hours on Mother’s Day;

(f) In 2013 and each year thereafter for two hours on each of the children’s birthdays;

(g) At such additional or alternate times as may be agreed between the parents.

Time in accordance with order 4(b) to (f) inclusive shall be subject to the following conditions:

(a) one of the maternal grandparents shall be present at all times while the children are with spending that time with the mother;

(b) it shall only take place either in the environs of the maternal grandparents home or in a public place;

(c) it shall not commence until both the maternal grandmother and the maternal grandfather have filed with the court and served on the father an undertaking that they will:

(i) be present (either together or singly) at all times while the children are with the mother.

(ii) abide by the order that time shall occur only at their home or in a public place;

(iii) ensure that the children are not brought into contact with or permitted to communicate with Mr D, Mr F, Mr T or any other adult male with whom the mother is pursuing a friendship or a relationship;

(iv) promptly notify the father should they have any reason to believe that the mother is in a relationship with a violent, criminal or anti-social male.

Until such time as both the maternal grandparents file and serve such an undertaking time shall continue to occur in accordance with Order (4)(a).

The mother is restrained and an injunction is granted restraining her from allowing the children to be brought into contact with or communicate with Mr D, Mr F, Mr T or any other unrelated adult male unless with the agreement of the father in writing.

Both parties are restrained from doing the following:

(a) using physical punishment to discipline the children or allowing any other person to do so;

(b) making critical or derogatory remarks about the other party in the presence or hearing of the children or from allowing any other person to do so.

The father shall keep the mother informed of the children’s extracurricular sporting activities, which the mother is entitled to attend unless the father communicates to her in writing that he is opposed to any particular attendance.

10.

The mother may obtain from the children’s school copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and may attend sports days, school concerts or school assemblies to which parents are invited.

11.

Each party shall behave respectfully to the other if they are both in attendance at the extra-curricular activities referred to in Order (9) or the sport days or the school functions referred to in order (10) and shall not attempt to discuss personal issues including issues relating to the children with the other parent at these times.

12.

Each party shall provide authorisation to any medical practitioners of the children to allow all parties to have direct access to the children’s health and medical records.

13.

Each party shall advise the other as soon as reasonably practicable in the event that the children while in their care are involved in an accident or medical emergency requiring treatment at hospital or are diagnosed with a serious illness.

14.

Each party shall keep the other advised of their mobile telephone number and residential address and advise the other party of a change of address or contact telephone number within twenty four (24) hours of a change occurring.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The primary considerations in s.60CC(2) are as follows:a)The benefit to the children of having a meaningful relationship with both of the children’s parents; andb)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. X and Y have a meaningful relationship with the father and should continue to do so. The only risk to that relationship would be if X’s protective instincts in regard to the mother were awaken again. If that occurred his relationship with his father could be undermined, just as happened in 2010. The children have a relationship with their mother, but it is not a particularly meaningful one at present. The mother sees them only once a fortnight at a contact centre and is not able to provide any nurturance or guidance for them. It does not automatically follow however that the children would have a meaningful relationship with the mother if they spent longer periods of time and unsupervised time with her. If more time and unsupervised placed the children back in the situation they were in prior to December 2010 the reverse could be the case. The relationship X had with the mother prior to December 2010 was not a meaningful relationship; it was an unhealthy relationship and it was of very limited value to him. It was impeding his ability to obtain an education and his ability to have a relationship with his father. Whether it is possible to craft orders which will ensure that the children have a meaningful relationship is open to question and I will need to return to this after considering the remaining s.60CC(2) and (3) matters. As for the second primary consideration, I am satisfied that there is no risk of the children being subjected to or exposed to abuse, neglect or family violence in the care of the father. X retracted his allegations against the father during the March 2011 interview with Ms C. The mother claimed that the father had been violent to her, but these claims were not pursued by the mother’s counsel during the hearing and I am satisfied that there is no substance in them. There was no suggestion that there was any violence in the relationship between the father and Ms S. There is an unacceptable risk that the children might be exposed to abuse (as it is defined in the Family Law Act) or family violence if they spent unsupervised time with the mother. I do not accept that the risk of the mother re-partnering with someone like Mr D or Mr F has passed. The mother said that the risk of the children being exposed to abuse or family violence in her care would be removed if an order was made restraining her from bringing the children into contact with named persons or into contact with any unrelated adult males. In some cases this would provide a solution to the problem, but not in this case. The mother cannot be trusted to comply with such an order. She flagrantly breached the 2010 order concerning Mr F and she has been repeatedly untruthful during the course of these proceedings.