BENTON & FFRENCH - [2014] FamCA 1239

FAMILY COURT OF AUSTRALIA

BENTON & FFRENCH

[2014] FamCA 1239

FAMILY LAW – CHILDREN – Best Interests – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply – With whom the children live – Where at the time of trial the daughter was living with the mother and the son was living with the father – Risk – Where there were allegations of sexual abuse of the daughter by the father – Where there were allegations of physical abuse of the son – Where it is ordered that both children live with the father – Where it is ordered that the children spend time with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60DAB, 61DA, 65AA, 65D, 65DAB.

Cox & Pedrana [2013] FamCAFC 48.
M v M (1988) 166 CLR 69.
McCall & Clark (2009) FLC 93-405.

APPLICANT:

Ms Benton

RESPONDENT:

Mr Ffrench

INDEPENDENT CHILDREN’S LAWYER:

Suthers Lawyers

FILE NUMBER:

BRC

660

2007

DATE DELIVERED:

Orders made 23 May 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

19, 20, 21 and 22 August 2013

REPRESENTATION

APPLICANT:

In person

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Suthers Lawyers

Orders

IT IS ORDERED ON A FINAL BASIS THAT

All previous parenting Orders are discharged.
The child K, born … 2003, live with the father.
The father spend time with the child S, born … 2000, from after school until 7.00 pm on Tuesday, 27 May 2014 and Thursday, 29 May 2014 with the father to collect her from school at the commencement of this time and return her to the mother’s residence at the conclusion of time.
The child S, born … 2000, live with the father from 3.00 pm Saturday, 31 May 2014.
The mother do all things necessary to ensure that the child S, born … 2000, is able to take her personal possessions, clothing, school uniforms, school books, and any educational items with her when she moves to live with the father.
The father have sole parental responsibility for all major long term issues relating to the children.
The father consult with the mother about decisions to be made in the exercise of his sole parental responsibility as follows:-
(a) he shall inform the mother about the decision to be made;
(b)he shall consult with the mother to ascertain if there are terms upon which they agree; and
(c) he shall consider the mother’s views when coming to a decision.
Commencing Monday, 9 June 2014, the children spend time with the mother at all reasonable times as agreed between the parties, but, failing agreement:
(a)from after school, or 3.00 pm, until 6.00 pm each Monday and Thursday; and
(b)for a period of no less than five (5) hours each alternate Sunday, with the first occasion to occur on 21 June 2014, at times to be agreed between the parties but, failing agreement: from…

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 BENTON & FFRENCH

Details

AGLC: BENTON & FFRENCH [2014] FamCA 1239
Case: [2014] FamCA 1239
Decision Date: 23 May 2014

CaseChat Overview and Summary

In this matter before Hogan J, the dispute concerned parenting orders for two children, K and S. At the time of trial, the daughter, K, was living with the mother and the son, S, was living with the father. Allegations of sexual abuse against the father concerning the daughter and physical abuse against the father concerning the son were raised.

The court was required to determine with whom the children should live and the extent of parental responsibility, considering the presumption of equal shared parental responsibility did not apply. The court also had to consider the best interests of the children in light of the allegations and the existing living arrangements.

Hogan J ordered that both children, K and S, live with the father. The father was granted sole parental responsibility for all major long-term issues relating to the children, with a requirement to consult with the mother on such decisions. The children were ordered to spend time with the mother at specified times, including weekdays, alternate Sundays, birthdays, and Christmas. The orders also included provisions for the facilitation of these contact times, injunctions restraining certain behaviours, and detailed requirements for communication and information sharing between the parents regarding the children's welfare and education.

Orders

Orders of the court

IT IS ORDERED ON A FINAL BASIS THAT

1. All previous parenting Orders are discharged.

2. The child K, born … 2003, live with the father.

3. The father spend time with the child S, born … 2000, from after school until 7.00 pm on Tuesday, 27 May 2014 and Thursday, 29 May 2014 with the father to collect her from school at the commencement of this time and return her to the mother’s residence at the conclusion of time.

4. The child S, born … 2000, live with the father from 3.00 pm Saturday, 31 May 2014.

5. The mother do all things necessary to ensure that the child S, born … 2000, is able to take her personal possessions, clothing, school uniforms, school books, and any educational items with her when she moves to live with the father.

6. The father have sole parental responsibility for all major long term issues relating to the children.

7. The father consult with the mother about decisions to be made in the exercise of his sole parental responsibility as follows:-

(a) he shall inform the mother about the decision to be made;

(b) he shall consult with the mother to ascertain if there are terms upon which they agree; and

8. Commencing Monday, 9 June 2014, the children spend time with the mother at all reasonable times as agreed between the parties, but, failing agreement:

(a) from after school, or 3.00 pm, until 6.00 pm each Monday and Thursday; and

(b) for a period of no less than five (5) hours each alternate Sunday, with the first occasion to occur on 21 June 2014, at times to be agreed between the parties but, failing agreement: from 10.00 am until 2.00 pm; and

(d) from after school, or 3.00 pm, until 6.00 pm on the mother’s birthday each year; and

(e) from 9.00 am until 1.00 pm on Christmas Day in even numbered years and from 1.00 pm until 5.00 pm on Christmas Day in odd numbered years; and

(f) for a period of no less than five (5) hours on Mother’s Day at times to be agreed between the parties but, failing agreement: from 10.00 am until 2.00 pm.

9. For the purpose of facilitating the time the children are to spend with the mother:

(a) on school days: the mother shall collect the children from school at the commencement of the time and shall deliver the children to the front gate of the father’s home at the conclusion of the time; and

(b) on non-school days: the mother shall collect the children from the front gate of the father’s home at the commencement of time and the father shall collect the children from the front gate of the mother’s home at the conclusion of the time.

10. During her time with the children, the mother shall be restrained and an injunction shall issue restraining her from bringing the children into any contact at all with Mr C.

11. Neither party shall approach the other during changeovers and the father shall take all reasonable steps to ensure that his partner, Ms G, not approach the mother during changeovers.

12. Each party shall keep the other informed of any change of contact phone number within twenty-four (24) hours of making such a change.

13. The mother and father shall:-

(a) keep the other parent informed at all times of their residential address and landline contact telephone number;

(b) keep the other parent informed of the names and addresses of any medical or other health practitioner who treats the children and authorise those practitioners provide to the other parent with information that they are lawfully able to provide about the children;

(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.

14. By this Order, any medical practitioner upon whom the children consult is hereby authorised to provide each parent with information about the children’s medical treatment.

15. By this Order, any school attended by the children is hereby authorised to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).

16. During the time the children are with either parent, that parent shall:-

(a) respect the privacy of the other parent and not question the children about the personal life of the other parent;

(b) speak of the other parent respectfully;

(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;

(d) allow the children to communicate with the parent with whom they are not then living or spending time by telephone at all reasonable times;

(e) not drive with the children in their care whilst under the influence of alcohol;

(f) not consume alcohol to excess or illicit drugs or remain in the company of persons who are consuming illicit drugs.

17. The father be restrained, and an injunction issue restraining him, in the exercise of his sole parental responsibility, from taking any steps to prevent the mother attending at the children’s school functions.

18. The mother be restrained, and an injunction issue preventing the mother from presenting the children to the Queensland Police or the Department of Communities (Child Safety) without first advising the Independent Children’s Lawyer of the nature of the complaint to be made, whilst an Independent Children’s Lawyer remains appointed in this matter.

19. The Independent Children’s Lawyer is discharged on 23 July 2014.

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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