FAMILY COURT OF AUSTRALIA
| CAULFIELD & TENNYSON | [2018] FamCA 770 |
| FAMILY LAW – CHILDREN – Magellan proceedings – Best interests of the child – With whom the child shall live and spend time – Where the child has had no contact with the father since May 2017 – Where the child has no meaningful relationship with the father – Additional considerations – Where there are past allegations of the father’s sexual abuse of the older half-sibling – Where the father denies the allegations – Where there is a current apprehended violence order in place protecting the older half-sibling from the father – Where the test to be applied is whether there is an unacceptable risk of the child’s sexual abuse by the father – Where the father poses an unacceptable risk of sexual abuse to the child – Where the child lives with the mother – Where the child spends no time with the father – Where the mother determines, as an incident of her sole parental responsibility, if and when the child ever spends time or communicates with the father. FAMILY LAW – CHILDREN – Parental responsibility – Where parental responsibility is rebutted due to allegations of family violence – Where there is an imbalance of power in the parties’ parental relationship – Where the party with whom the child lives should have exclusive parental responsibility – Where mother has sole parental responsibility – Where the mother seeks to change the child’s surname to match the surname of his half-sibling – Where that would be inappropriate – Where the parties agree the child’s surname may be changed to match the mother’s surname – Where orders provide for the mother to change the child’s surname. |
| Evidence Act 1995 (Cth), s 140(2) Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61B, 61DA, 61DA(2), 61DA(4) 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE |
| Betros & Betros [2017] FamCAFC 90 Briginshaw v Briginshaw (1938) 60 CLR 336 M v M (1998) 166 CLR 69 Marriage of Segley (1995) 19 Fam LR 363 Re Andrew (1996) 20 Fam LR 538 Slater & Light (2013) 48 Fam LR 573 U v U (2002) 211 CLR 238 |
| APPLICANT: | Ms Caulfield |
| RESPONDENT: | Mr Tennyson |
| INDEPENDENT CHILDREN’S LAWYER: | Fielden & Associates - Family & Relationship Lawyers |
| FILE NUMBER: | NCC | 2638 | of | 2017 |
| DATE DELIVERED: | 24 September 2018 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 6 & 7 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Ticehurst |
| SOLICITOR FOR THE APPLICANT: | Virginia Taylor Lawyer |
| COUNSEL FOR THE RESPONDENT: | Mr Jacobs |
| SOLICITOR FOR THE RESPONDENT: | Turnbull Law Pty Ltd Trading as 0414lawyer |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Guyder |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Fielden & Associates - Family & Relationship Lawyers |
Orders
All former orders in respect of the child X, born … 2015, are discharged.
The mother shall have sole parental responsibility for the child.
As an incident of her sole parental responsibility for the child, the…
Continue reading CAULFIELD & TENNYSON
Sign in free to access the full text
- AGLC
- CAULFIELD & TENNYSON [2018] FamCA 770
- Case
- [2018] FamCA 770
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether there was an unacceptable risk of sexual abuse to the child by the father, given past allegations of sexual abuse by the father against the child's older half-sibling, which the father denied. Additionally, the court considered the best interests of the child, including with whom the child should live and spend time, and whether parental responsibility should be solely with the mother. The mother also sought to change the child's surname.
Austin J reasoned that the father posed an unacceptable risk of sexual abuse to the child, a conclusion supported by an apprehended violence order in place protecting the older half-sibling from the father. The court found that the child had no meaningful relationship with the father, having had no contact since May 2017. Consequently, the court determined that the mother should have sole parental responsibility for the child, and that the child should live with the mother. The court also ordered that the child's surname be changed to Caulfield, with the mother's consent.
The orders discharged all former orders, granted the mother sole parental responsibility, and stipulated that the child live with the mother. The father was restrained from approaching the mother's residence or any childcare or educational facilities attended by the child. No provision was made for the child to spend time or communicate with the father, with such decisions left to the mother's discretion as an incident of her sole parental responsibility. The court also reserved costs and dismissed all other outstanding applications.
Orders
Orders of the court
1.
All former orders in respect of the child X, born … 2015, are discharged.
2.
The mother shall have sole parental responsibility for the child.
3.
As an incident of her sole parental responsibility for the child, the mother may do all things necessary to change the child’s surname from “Tennyson” to “Caulfield”.
4.
The child shall live with the mother.
5.
Pursuant to s 68B of the Family Law Act 1975 the father is restrained from entering upon or approaching within 100 metres of:
(a) The mother’s residence; and
(b) Any child-care centre, pre-school, or school attended by the child.
6.
The mother shall authorise and request the principal of any child-care centre, pre-school, or school attended by the child to provide to the father, at his expense, copies of reports and photograph order forms relating to the child.
7.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.
8.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
9.
Costs are reserved for 28 days.
10.
Any and all other outstanding applications are dismissed.
Notations
(A) These orders intentionally make no provision for the child to spend time or communicate with the father. If, when, and how the child spends time or communicates with the father will be determined by the mother as an incident of her exclusive parental responsibility for the child.
(B) These orders are consistent with the apprehended violence order made against the father by the Local Court of New South Wales at Town B, New South Wales on 6 August 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.