FAMILY COURT OF AUSTRALIA
| CARNEGIE & GINTER | [2013] FamCA 331 |
| FAMILY LAW – CHILDREN – child’s living arrangements – where the child lives with the father – where the child initially spends limited supervised time with the mother, but expanding over a year to unsupervised substantial and significant time – where the child has a meaningful relationship with both parents – where the child is not at risk of psychological or physical harm by exposure to family violence or abuse in the care of either parent – where parenting orders reverse the child’s former residence – where the mother could not support the child’s relationship with the father and was less able to support the child’s emotional needs – where the father supported the child’s emotional needs – where the child’s residence with the father was less likely to lead to the institution of further proceedings – where the mother continued to hold a genuine but erroneous belief the father had sexually abused the child – where it was probable the mother would continue to interrogate the child about the child’s experiences with the father FAMILY LAW – CHILDREN – Parental Responsibility – allocation of sole parental responsibility to the father – where the evidence rebutted the presumption of equal shared parental responsibility FAMILY LAW – CHILD ABUSE – Allegations of sexual and physical abuse – finding on the balance of probabilities that there was no sexual abuse of the child by either the father or paternal grandmother – finding that the child was not exposed to an unacceptable risk of harm through sexual abuse by either the father or paternal grandmother – finding on the balance of probabilities that the father did not physically abuse the child – finding that the child was not exposed to an unacceptable risk of harm through physical abuse by the father FAMILY LAW – EVIDENCE – Application of the rules of evidence to the determination of allegations of child abuse in proceedings conducted pursuant to Part VII Division 12A of the Family Law Act (Cth) FAMILY LAW – COSTS – Costs reserved |
| Crimes Act 1900 (NSW) s 61AA Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(Cth) Evidence Act 1995 (Cth) s 135 and s 140 |
| Amador & Amador (2010) 43 Fam LR 268 Johnson v Page (2007) FLC 93-344 Goode & Goode (2006) FLC 93-286 Jacks & Samson (2008) FLC 93-387 Johnson v Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 Magill v Magill (2006) 226 CLR 551 Maluka v Maluka (2011) FLC 93-464 Marriage of B & B (1993) FLC 92-357 Marriage of L & T (1999) 25 Fam LR 590 Marriage of Paskandy (2005) 33 Fam LR 509 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 MRR v GR (2010) 240 CLR 461 Napier & Hepburn (2006) FLC… |
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- CARNEGIE & GINTER [2013] FamCA 331
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- [2013] FamCA 331
- Decision Date
CaseChat Overview and Summary
The court was required to determine the factual basis of the allegations of child abuse, applying the rules of evidence to these determinations. It also had to consider the child's meaningful relationships with both parents, the risk of harm to the child, and the capacity of each parent to support the child's emotional needs and facilitate the child's relationship with the other parent. Furthermore, the court needed to assess which parenting arrangements would be less likely to lead to further litigation.
Austin J found, on the balance of probabilities, that there was no sexual abuse of the child by either the father or paternal grandmother, nor was the child exposed to an unacceptable risk of harm from such abuse. Similarly, the court found that the father did not physically abuse the child and that the child was not exposed to an unacceptable risk of harm from physical abuse by the father. The court determined that the presumption of equal shared parental responsibility was rebutted, finding that the mother was less able to support the child's emotional needs and could not support the child's relationship with the father. Consequently, the court ordered that the father have sole parental responsibility for the child and that the child live with the father. The orders also detailed a phased approach to the child spending time with the mother, commencing with supervised time and gradually increasing to unsupervised time, with specific provisions for holidays and communication. The court also made orders restraining denigration of a parent and prohibiting the child from being privy to discussions about abuse allegations, and reserved costs.
Orders
Orders of the court
1.
All former orders relating to the child B, born … October 2006, (“the child”) are discharged.
2.
The father shall have sole parental responsibility for the child.
3.
The child shall live with the father.
4.
The parties shall each take all reasonable steps to ensure the child spends time with the mother as follows, or as otherwise agreed:
(a) Up to and including Friday 1 November 2013, each Saturday for a period not exceeding three hours, which time is to be supervised in accordance with Order 6 hereof.
(b) From Saturday 2 November 2013 up to and including Thursday 10 April 2014:
(i) Each weekend from 9.00 am Saturday until 4.00 pm Sunday; and
(ii) From 3.00 pm Christmas Day until 3.00 pm Boxing Day.
(c) From Friday 11 April 2014 onwards:
(i) During New South Wales public school terms, each alternate weekend from the conclusion of school or 3.30 pm Friday (whichever is the earlier) until 5.00 pm Sunday, commencing on the first Friday of each term;
(ii) During New South Wales school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and
(iii) During the New South Wales Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
5.
Order 4(c) is suspended during the following periods:
(a) From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, and with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even numbered years, with the same arrangements in reverse in odd numbered years; and
(b) Between 5.00 pm Saturday and 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the child shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend.
6.
For the purpose of implementation of Order 4(a) hereof:
(a) The supervisor of the time spent by the child with the mother shall be staff at C Centre D Town, Ms E, or some other person or entity nominated by that organisation or person, in that order of priority (“the supervisor”).
(b) Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.
(c) In the event of disagreement between the parties, the father shall do all such things necessary to engage the supervisor.
(d) The time that is to be spent by the child with the mother each Saturday shall commence and conclude at the time designated by the supervisor.
(e) The venue at which the time is to be spent by the child with the mother shall be designated by the supervisor.
(f) The parties shall pay in equal shares any costs due to the supervisor.
(g) The father shall cause the delivery of the child to, and the collection of the child from, the supervisor at the commencement and conclusion of the time spent by the child with the mother.
(h) If on an occasion that the child is due to spend time with the mother that time together cannot be accommodated by the supervisor the time that the child would otherwise have spent with the mother shall be made-up at another time as close to the original time as can be arranged.
(i) The parties shall comply with all reasonable requests and directions of the supervisor.
(j) Leave is granted to the parties to provide to the supervisor a sealed copy of these orders.
7.
For the duration of operation of Order 4(a) hereof the mother is restrained from entering upon or approaching within 100 metres of the school attended by the child and leave is granted to the father to furnish a sealed copy of these orders to the principal of that school.
8.
For the purpose of implementing orders 4(b), 4(c) and 5 hereof:
(a) The New South Wales public school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day halfway between those first and last days; and
(b) The party with whom the child is to live or spend time shall collect the child:
(i) From school, whenever such time is to commence following the conclusion of school during school term, or
(ii) From the other party or his/her nominee at the residence of the other party whenever such time is to commence at a time other than the conclusion of school during school term.
9.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:
(a) The mother each Tuesday and Thursday when the child is living with the father, between 6.30 pm and 7.00 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.
(b) The father each Tuesday and Thursday when the child is spending time with the mother, between 6.30 pm and 7.00 pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.
(c) The parent with whom she is not then staying, on the child’s birthdays, between 6.30 pm and 7.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.
10.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
11.
Each party is restrained from causing or permitting the child to be privy to any discussion concerning the allegations made in or prior to these proceedings of her sexual and/or physical abuse.
12.
The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.
13.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
14.
The mother shall forthwith enrol herself to commence and thereafter participate in and complete a post-separation parenting program and then provide evidence of her completion of the program to the father.
15.
Leave is granted to the parties to provide to any counsellor retained to counsel either the mother or the child copies of:
(a) These orders;
(b) The reasons for judgment; and
(c) The Family Report dated 18 January 2013.
16.
In the event of either party’s future notification to the police or a prescribed child welfare authority that the child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made, copies of:
(a) These orders;
(b) The reasons for judgment; and
(c) The Family Report dated 18 January 2013.
17.
Within seven days hereof the father shall cause the child to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to her the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.
18.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
19.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
20.
Costs are reserved for 28 days.
21.
Any and all outstanding applications are dismissed.
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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