FAMILY COURT OF AUSTRALIA
| CARDEN & HILLIARD AND ANOR | [2014] FamCA 438 |
| FAMILY LAW – CHILDREN – Family Violence – Where issue as to whether the mother presents as an unacceptable risk of harm to the children – Where alleged the mother posed three risks to the children those being a risk of physical abuse, sexual abuse and neglect – Where court not satisfied the mother presents a risk of harm to the children by way of physical abuse alleged – Where court not persuaded the children are at an unacceptable risk of physical or sexual abuse as alleged whilst in the mother’s care – Where court satisfied there is some risk of physical harm to the children in the mother’s care in the event that she is intoxicated – Where issue as to whether the father presents as an unacceptable risk of harm to the children – Where father has a long history of serious criminal history and violence – Where alleged the father posed an emotional risk to the children as a result of the children witnessing family violence and the prospect of the father coaching them to make further allegations against the mother – Where children have been exposed to the father’s violent behaviours – Where father obsessed with the notion that the children have been burnt and sexually abused whilst in the mother’s care – where father over many years has taken the children to medical practitioners with a view of having them accept that the mother has burnt the children with cigarette butts – Where material supports the father has been deliberately coaching the children with a view of them appearing to make disclosures of being burnt or sexually abused – Where father handed out a pamphlet publicly alleging they had suffered abuse at the hands of the mother – Where court of the view that there is a lack of emotional separation between the parties – Where court of the view the father is likely to continue to use the children as a means of exerting control or trying to exert control over the mother – Where court satisfied the father represents an emotional risk of harm to the children. FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child – Family violence – Cultural issues – Where children have principally resided with mother since birth – Where competing proposals between mother and paternal grandmother for residence – Where court noted that 60CC factors are specific to parents in relation to determining where the best interests of children lie – Where court noted 60CC factors still have a role to play where cases do not involve parents as active protagonists – Where father incarcerated from time to time – Where concern about the mother’s capacity to care for the children in relation to her abuse of alcohol is adverse to the mother – Where father has very limited capacity to provide for the children particularly on an… |
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- AGLC
- Carden & Hilliard [2014] FamCA 438
- Case
- [2014] FamCA 438
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on establishing a framework for the children's upbringing that balanced the roles of the mother and the paternal grandmother. Tree J ordered that the mother have sole responsibility for most major long-term issues, but with significant carve-outs for the paternal grandmother. Specifically, the paternal grandmother was given sole responsibility for decisions concerning the children's education, and the mother was restricted from relocating the children away from their current area without the paternal grandmother's agreement or a court order. Both parties were also required to consult with each other regarding decisions about the children's health and education, with specific notice periods and obligations to consider advice.
The court made detailed orders regarding the children's residence, stipulating they live with the mother. Time spent with the father was to be supervised through Relationships Australia, and he was otherwise prohibited from spending time or communicating with the children. The children were to spend time with the paternal grandmother, with specific arrangements detailed depending on her residence, including provisions for school terms, weekends, birthdays, and holidays. The court also ordered that the Independent Children's Lawyer be discharged and all extant applications dismissed.
Orders
Orders of the court
Parental responsibility
1.
All previous parenting Orders be discharged.
2.
Save as provided in Orders 3 and 4, the mother has sole responsibility for all major long-term issues concerning L born … 2005 and D born … 2007, (“the children”).
3.
Notwithstanding Order 2, the mother shall not be permitted to relocate the residence of the children away from the area of Town R/Town A and Town DD without the prior agreement of the paternal grandmother or Order of a Court first obtained.
4.
Notwithstanding Order 2, the paternal grandmother has sole responsibility for decisions concerning the education (both current and future) for the children.
5.
Both the mother and the paternal grandmother shall consult with the other concerning any decision either proposes to make in respect of the children’s health (in the case of the mother) or education (in the case of the paternal grandmother) by:
(a) informing the other of any such proposed decision not less than 14 days before the decision is to be implemented;
(b) inviting the other to provide her advice or comments in respect of such proposed decision; and
(c) giving reasonable regard to any advice or comments made by the other; and
(d) thereafter informing the other of the decision she will then make.
6.
For the purpose of giving practical effect of Orders 2, 4 and 5 this Order shall operate an as authority:
(a) to any medical or allied health professional with whom the children or either of them may be involved in treatment or consultation to provide reasonable information to the paternal grandmother concerning such treatment or consultation; and
(b) to the school attended by the children to provide to the mother copies of school reports concerning the children.
With whom the children live
7.
The children live with the mother
With whom the children spend time and communicate
8.
The children shall spend supervised time with the father as may be facilitated by Relationships Australia at Town DD and for that purpose both the father and mother shall promptly complete any intake requirements of Relationships Australia at Town DD.
9.
The father shall not otherwise spend time with or communicate with the children.
10.
Provided that the father is not living at the home of the paternal grandmother, the children shall spend time and communicate with the paternal grandmother as may be agreed between the mother and paternal grandmother and failing agreement:
If the paternal grandmother lives in Town R
(a) during school terms, on Tuesday from after school until 7:00pm;
(b) on the first and third weekend of every month, from 9:00am Saturday until 5:00pm Saturday;
(c) on the paternal grandmother’s birthday if a school day, from 4:00pm until 7:00pm and if on a weekend from 9:00am until 5:00pm on that day;
(d) on the children’s birthdays if a school day, from 4:00pm until 6:00pm and if on a weekend from 9:00am until 1:00pm on that day;
(e) each Christmas holidays for the first two weeks in January, commencing on 9:00am on the first Saturday in January, and concluding at 5:00pm on the third Sunday in January.
If the paternal grandmother remains living in Town DD
(f) each alternate weekend from 9:00am until 5:00pm on Saturday;
(g) each Wednesday night by telephone between 6:30pm until 7:00pm;
(h) on the paternal grandmother’s birthday if on a weekend from 9:00am until 5:00pm on that day and if a weekday by telephone commencing at 6:30pm;
(i) on the children’s birthdays by telephone commencing at 6:30pm;
(j) each Christmas holidays for two weeks in January, commencing on 9:00am on the first Saturday in January, and concluding at 5:00pm on the third Sunday in January.
Practical arrangements
11.
The mother, the father and the paternal grandmother shall keep each other promptly advised of the place where they live, their email address (if any) and of a telephone number where they may be contacted.
12.
The Independent Children's Lawyer is forthwith 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.
13.
Otherwise all extant Applications be dismissed and the matter be removed from the list of active pending cases.
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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