Calvert and Madock - [2020] FamCA 219

FAMILY COURT OF AUSTRALIA

CALVERT & MADOCK

[2020] FamCA 219

FAMILY LAW – CHILDREN – Whether the mother poses an unacceptable risk to the children – Where the mother has a fixed belief that the father has abused the children and remains a risk of doing so again in the future – Where the mother poses a significant risk of psychological harm to the children because of her fixed belief – Where the risk cannot be mitigated by the mother undertaking psychological or psychiatric treatment – Where there is evidence that the mother has demonstrated an inability to protect the children in the past – Order for sole parental responsibility in favour of the father – Order that the children live with the father – Order that the children spend time and communicate with the mother as determined by the father.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA and s 61DAA

Harridge and Anor and Harridge and Anor [2010] FamCA 445
M v M (1988) 166 CLR 69
Maldera & Orbel (2014) FLC 93-602
N and S and the Separate Representative (1996) FLC 92-655
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re Andrew (1996) FLC 92-692
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768
S v Australian Crime Commission (2005) 144 FCR 431
Wacando v The Commonwealth (1981) 148 CLR 1
WK v SR (1997) 22 Fam LR 592

APPLICANT:

Ms Calvert

RESPONDENT:

Mr Madock

INDEPENDENT CHILDREN’S LAWYER:

Ms Bassano

FILE NUMBER:

CSC

106

2014

DATE DELIVERED:

8 April 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

10 and 11 March 2020

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Williams

SOLICITORS FOR THE RESPONDENT:

Collier Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Mr Slade Jones

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Bassano Law

Orders

All previous parenting order in relation to the children W born … 2009; X born … 2011 and Y born … 2013 (“the children”) be discharged.

Parental responsibility

The father shall have sole parental responsibility for the long term and day to day matters relating to the children.

Living arrangements

The children shall live with the father.

Time and communication with the mother

Whether any of the children spend time or communicate with the mother, and the circumstances under which they may do so, shall be determined by the father as an incident of his sole parental responsibility for the children.
Notwithstanding order 4 hereof:
(a)The mother shall be permitted to send to the children on birthday card or letter, on Christmas card or letter each year, and gifts as she sees fit; and
(b)The father shall not be permitted to allow unsupervised time between the child or children and the mother.
The father shall send copies of the children’s school reports and any school photos to the mother as soon as possible upon receipt.

Restraints

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 Calvert and Madock

Details

AGLC: Calvert and Madock [2020] FamCA 219
Case: [2020] FamCA 219
Decision Date: 8 April 2020

CaseChat Overview and Summary

In the matter of *Calvert and Madock*, heard by Tree J, the court was asked to determine parenting orders concerning three children. The dispute involved the father seeking sole parental responsibility and the children living with him, while the mother's role in the children's lives was also a central issue.

The court was required to determine whether to discharge existing parenting orders and, if so, what new orders should be made regarding parental responsibility, the children's living arrangements, and their time and communication with each parent. Furthermore, the court had to consider whether to impose restraints on the mother's ability to attend certain professionals or authorities with concerns relating to the children, and under what circumstances such restraints might be lifted.

Tree J reasoned that the father should have sole parental responsibility for both long-term and day-to-day matters, and that the children should live with him. The court determined that the father would decide any time or communication the children had with the mother, although the mother would be permitted to send cards and gifts. Crucially, the father was prohibited from allowing unsupervised time between the children and the mother. The court also imposed significant restraints on the mother, preventing her from attending medical practitioners, hospitals, allied health providers, child welfare authorities, or the police service with concerns about the children, unless she obtained the father's written consent, acted in an emergency, or obtained court permission. The father was granted leave to provide relevant reports and orders to various institutions, while the mother was directed to provide them to any counsellor she engaged.

The court ordered the discharge of all previous parenting orders. The father was granted sole parental responsibility and the children were ordered to live with him. The mother was restrained from attending specified professionals or authorities without consent or court permission, with exceptions for emergencies. The Independent Children's Lawyer was discharged, and all other extant applications were dismissed.

Orders

Orders of the court

All previous parenting order in relation to the children W born … 2009; X born … 2011 and Y born … 2013 (“the children”) be discharged.

Parental responsibility

The father shall have sole parental responsibility for the long term and day to day matters relating to the children.

Living arrangements

The children shall live with the father.

Time and communication with the mother

Whether any of the children spend time or communicate with the mother, and the circumstances under which they may do so, shall be determined by the father as an incident of his sole parental responsibility for the children.

Notwithstanding order 4 hereof:

(a) The mother shall be permitted to send to the children on birthday card or letter, on Christmas card or letter each year, and gifts as she sees fit; and

(b) The father shall not be permitted to allow unsupervised time between the child or children and the mother.

The father shall send copies of the children’s school reports and any school photos to the mother as soon as possible upon receipt.

Restraints

The mother be restrained and an injunction to issue restraining the mother from attending upon:

(a) Any medical practitioners; or

(b) Any hospital or allied health providers; or

(d) The Queensland Police Service or any other police service;

(“the professionals”) with any concern relating to the children.

Order 7 hereof shall not have any effect if the mother:

(a) First obtains the father’s written (SMS will suffice) consent to attend upon the professionals; or

(b) In the case of emergencies, within 24 hours, presents a copy of this order to the professionals; or

Other orders

The mother and the father shall keep each other informed of all contact details including their residential addresses, telephone numbers, and email addresses.

10.

The Independent Children's Lawyer shall explain the orders to the children within 14 days hereof.

11.

The father is granted leave to provide a copy of the orders, judgment, the psychiatrist’s report and the Family Report to:

(a) Any educational facility the children attend from time to time;

(b) The Queensland Police Service;

(d) The prescribed child welfare authority; or

(e) Any other authority or agency.

12.

The mother shall provide a copy of the orders, judgment, the psychiatrist’s report and the Family Report to such counsellor or psychologist as she may choose to engage from time in relation to the acceptance of the findings in the judgment supporting these orders.

13.

The Independent Children's Lawyer is discharged with the thanks of the court, upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal that may be brought therefrom.

14.

Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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