FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2006] FMCAfam 411 |
| FAMILY LAW – Application for parenting order – re-determination of children’s primary residence – where father alleged mother sexually abused younger child – whether unacceptable risk – civil standard – where the father repeatedly questioned the child about being sexually abused and involved other child – severe breakdown in communication between the parties – separation of siblings and balancing that with child’s relationship with primary carer – parental alienation – expert report – weight to be attached to expert report and expert’s oral evidence in circumstances where her findings and conclusion were contradictory and unsatisfactory – significant material not included in report as to the nature of child’s relationship with father – where report writer limits her assessment to the mother as the cause of the family difficulties and such an assessment found to be demonstrably inconsistent to the father’s behaviour in proceedings before the Court – children’s views contentious – primary and additional considerations – credibility – positive finding of sexual abuse not made – conditional residence order imposed. |
| Family Law Act 1975 (Cth) (as amended), ss.10G, 13C, 60B, 60CA, 60CC, 61B, 61C, 61DA, 61DAA, 65DA, 61DAA, 61DAC, 61DB, 65DAA, 65DAC, 65DA(2) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Reform Act 1995 (Cth) Evidence Act 1995 (Cth) and (NSW), s.140 |
| Rice v Asplund (1979) FLC 90-725 King v Finneran [2001] FamCA 344 Brown and Pedersen (1991) 105 FLR 83 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 B v B (Access) (1986) FLC 91-758 T & N [2001] FMCAfam 222 A & V [2002] FMCAfam 273 N and S and the Separate Representative (1996) FLC 92-655 S v S [1993] NZFLR 657 C v J (1996) FLC 92-697 M v M (1988) 166 CLR 69 B v B (1988) FLC 91-957 Briginshaw v Briginshaw (1938) 60 CLR 336 Murray v Murray (1960) 33 ALJR 521 WK v SR [1997] FLC 92-787 B v B (1993) FLC 92-357 Re W (Sexual Abuse: Standard of Proof) (2004) FLC 93-192 TF and JF and Children’s Representative [2005] FamCA 394 Baynes & McCann [2006] FMCAfam 16 A v A (1998) FLC 92-800 Hall and Hall (1979) FLC 90-713 In the Marriage of Mathieson [1977] FLC 90-230 Heidt and Heidt (1976) FLC 90-078 Ahmad and Ahmad (1979) FLC 90-633 R v R: Children's Wishes (2000) FLC 93-000 Patrick Parkinson, ‘Family Law and Parent-Child Contact Assessing the Risk of Sexual Abuse’ (1999) 23 Melbourne University Law Review 345 Kee McFarlane, ‘Child Sexual Abuse Allegations in Divorce Proceedings’ in Kee McFarlane and Jill Waterman (eds), Sexual Abuse of Young Children: Evaluation and Treatment (1986) 121 Richard Chisholm, ‘Child Sexual Abuse: The High Court Rules on Onus of Proof’ (1989) 3 Australian Journal of Family Law 184 |
| Applicant: | S C |
| Respondent: | A C |
| File number: | SYM 3281 of 2004 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 19 & 20 June and 10 & 11 August 2006 |
| Delivered at: | Sydney |
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- AGLC
- C and C [2006] FMCAfam 411
- Case
- [2006] FMCAfam 411
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed by the court included the allocation of parental responsibilities, the detailed arrangements for the children's time with each parent, and the measures necessary to ensure the children’s safety and well-being. The court had to balance the statutory objectives under the Family Law Act, particularly the paramountcy of the children's best interests, with the specific circumstances and needs of the children and parents. The court also needed to consider any relevant evidence, including the recommendations of the Independent Children’s Lawyer.
The court determined that both parents should have equal shared parental responsibility for the children, reflecting the importance of both parents' roles in the children's lives. The court ordered that J live with the mother and C live with the father, subject to certain conditions for the father, including the completion of an anger management course and demonstrating a willingness to promote a relationship with the mother. The court set out detailed arrangements for the children’s time to be spent with each parent, including specific schedules for weekends and school holidays, and special occasions such as Mother’s and Father’s Day. The court also included provisions to facilitate communication between the children and their parents and between the children themselves, ensuring their ongoing relationship.
The court issued comprehensive orders to protect the children's welfare, including provisions for medical information sharing, school communication, and restrictions on taking the children out of Australia without consent. The court also included measures to prevent the children from being involved in parental disputes and to ensure their safety in various situations. The orders further included mechanisms for resolving disputes and variations to the orders, emphasizing the importance of ongoing communication and cooperation between the parents.
Orders
Orders of the court
1.
That all previous parenting orders are discharged.
2.
That the mother and father are to have equal shared parental responsibility for the children.
3.
That J live with the mother.
4.
That C live with the father.
5.
Order 4 is conditional upon the following:
(a) The father attend and successfully complete an anger management course, such course to be agreed upon between the father and the Independent Children’s Lawyer and upon completion of course the father provide to the mother and the Independent Children’s Lawyer confirmation of completion;
(b) Accepts the mother’s equal shared parental responsibility; and
(c) Demonstrates a willingness to encourage and promote a relationship between the children and their mother.
6.
That J shall spend time with the father as follows:
(a) Each alternate weekend from 5pm Friday through to 5pm Sunday commencing 18 August 2006.
(b) For one half of each school holiday period being the first half in the year 2006 and each alternate year thereafter and the second half in the year 2007 and each alternate year thereafter.
7.
That C shall spend time with the mother as follows:
(a) Each alternate weekend from 5pm Friday through to 5pm Sunday commencing 25 August 2006.
(b) For one half of each school holiday period being the second half in the year 2006 and each alternate year thereafter and the first half in the year 2007 and each alternate year thereafter.
8.
During Soccer season and whilst ever C is actively involved in playing soccer, order 7(a) shall commence at the conclusion of C’s games and the mother shall collect C from his soccer game.
9.
That in addition to the time that the children or either of them spend with each parent as set out in orders 6 and 7 on the following occasions of special significance the children shall spend time with the parties as follows:
(a) The father shall not have either C or J on the weekend which includes Mother’s Day but shall transport C to the mother’s residence at 6pm Friday and collect C from the mother’s residence at 6pm Sunday of that weekend; and
(b) The mother shall not have either C or J on the weekend which includes Father’s Day but shall transport J to the father’s residence at 6pm Friday and collect J from the father’s residence at 6pm Sunday of that weekend.
10.
In the event that the children are with the mother during the first half of the Christmas school holiday period, the father shall spend time with C and J from 4pm on Christmas Day until 6pm on Boxing Day. The father shall collect C and J from the mother’s residence and return C and J to the mother’s residence.
11.
In the event that the children are with the father during the first half of the Christmas school holiday period, the mother shall spend time with C and J from 4pm on Christmas Day until 6pm on Boxing Day. The mother shall collect C and J from the father’s residence and return C and J to the father’s residence.
12.
That in order to facilitate order 6 the father shall collect and deliver J at the commencement and conclusion of the period.
13.
That in order to facilitate order 7 the mother shall collect and deliver C at the commencement and conclusion of the period.
14.
The father shall email the mother with details of C’s soccer season as they come to hand including times, dates and addresses for C’s games.
15.
That the parties will facilitate C and J communicating with each other by telephone each Wednesday evening at 7pm. The mother shall facilitate the call to the father’s home on the first Wednesday following these orders and each alternate Wednesday thereafter and the father shall facilitate the call to the Mother’s home on the second Wednesday following these orders and each alternate Wednesday thereafter and each party shall ensure that the children have privacy to speak with each other during this period. Neither party shall speak to either C or J during this telephone contact.
16.
J shall communicate with the father by telephone at all reasonable times that he may request and the mother shall facilitate the making of such telephone calls.
17.
C shall communicate with the mother by telephone at all reasonable times that he may request and the father shall facilitate the making of such telephone calls.
18.
That both parties shall ensure that the other is kept informed by e-mail transmission at the earliest opportunity and in any event within twenty four hours of:
(a) any medical problems, specialist appointments or illnesses suffered by either child whilst in their care;
(b) any medication that has been prescribed for either child whilst in their care;
(c) school issues as they arise in relation to either child whilst in their care; and
(d) any school meeting, parent-teacher function.
19.
That in the event of either C or J being hospitalised or receiving medical attention the parent spending time with the child at the relevant time shall notify by SMS the other parent as soon as practicable and include details of injury and details of where the child is receiving medical treatment.
20.
That each party shall inform the other in writing as soon as practical of any specialist medical appointment with any psychologist, psychiatrist, counsellor or therapist in relation to either C or J.
21.
That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable), email address and advise the other party of any changes to these details within seven days of such change occurring.
22.
That within fourteen days of these orders and within fourteen days of either C’s or J’s subsequent enrolment at any school each parent do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend form time to time, the school forward directly to the other parent copies of all of each child’s school reports and merit cards and any written material pertaining to each child’s academic and extra-curricular activities and any other matter pertaining to the child’s attendance at school.
23.
That both parents are entitled to attend all events involving the children or either of them including:
(a) sporting fixtures; and
(b) extra curricular activities that allow for parental attendance; and
(c) school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
24.
The parent who has the children in their care pursuant to these orders on the day of such activity will be responsible for their day to day care at such events and the transportation to and from that event.
25.
That both parents be and are hereby restrained from taking either child to be examined by a medical practitioner in relation to allegations of sexual abuse without first seeking the permission of the Department of Community Services.
26.
That the parties must within one month of the date of these orders do everything necessary to attend for the purposes of assessment of their suitability to attend a Parenting After Separation with Unifam or Relationships Australia and upon being assessed as suitable attend and complete such programme as may be recommended by the Co-Ordinator of the Centre and the father shall use his best endeavours to ensure that his wife S C also attends.
27.
The process to be used for resolving disputes about the interpretation, implementation or enforcement of these orders is as follows:
(a) the mother and father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General; or
(b) the mother and the father shall participate in family dispute resolution with a person authorised under s.10G of the Family Law Act.
28.
Before an application is made to a Court for a variation of these orders to take account of the changing needs or circumstances of the children or of the parties each party is to take the following steps:
(a) The mother and father shall do things necessary to attend counselling or mediation with an organisation recognised under the family law act or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under s.10G of the Family Law Act.
29.
That the mother and father including S and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
30.
That the parties including S and their servants and agents be and are hereby restrained by themselves and their servants or agents from telephoning, assaulting, molesting, harassing or intimidating the other and/or the children.
31.
That the parties including S and their servants and agents be and are hereby restrained by injunction from talking to the children about living with either parent.
32.
That neither party including S shall include the children in any discussion or decision regarding parental responsibility matters.
33.
That neither party including S send messages through the children.
34.
That neither party including S and their servants and agents shall take the children out of the Commonwealth of Australia without the written consent of the other party (such consent will not be unreasonably withheld), or an order of a Court of competent jurisdiction.
35.
That no later than eight weeks prior to any planned removal of the children from Australia, the parent who planned the trip shall give the other written notice of their intention and the itinerary and no less than four weeks prior to departure that parent shall provide a photocopy of the children’s return ticket for the trip and the parent in possession of the children’s passport provide to the parent travelling with the children the children’s passport.
36.
As soon as practicable the father do all acts and things necessary to remove the children’s names from the Airport Watch List.
37.
That in the event C takes his bike and any other personal items to the Central Coast both the father and S be responsible for the return of such items to Sydney.
38.
That the order for the appointment of the Independent Children’s Lawyer dated 25 January 2005 and 3 February 2006 be extended to 20 September 2007 and IT IS REQUESTED that the Legal Aid Commission of New South Wales fund such extension.
39.
That the order for the appointment of the Independent Child Lawyer dated 25 January 2005 and 3 February 2006 be discharged as of from 21 September 2007.
40.
That within seven days of the making of these orders the Independent Children’s Lawyer cause a sealed copy of these orders, together with a copy of these Reasons for Judgment, to be served on the Proper Officer of the Department of Community Services.
41.
That the Independent Children’s Lawyer be at liberty to apply directly to my Associate in relation to this matter.
42.
That the matter be listed for mention before me at 11am on 5 March 2007 at 97-99 Goulburn Street, Sydney.
43.
That all Exhibits and Subpoena material be returned by the Court at the expiration of 28 days from the date of these orders.
44.
That the file and the Exhibits and Subpoena material remain in the Sydney Registry of the Federal Magistrates Court.
45.
That all extant applications otherwise be dismissed.
46.
That pursuant to s.65DA(2) of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Annexure A” and these particulars are included in these orders.
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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