CAULFIELD & TENNYSON - [2018] FamCA 770

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

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…

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 CAULFIELD & TENNYSON

Details

AGLC: CAULFIELD & TENNYSON [2018] FamCA 770
Case: [2018] FamCA 770
Decision Date: 24 September 2018

CaseChat Overview and Summary

In the Family Court of Australia, Austin J presided over proceedings concerning the child X, born in 2015, between the mother, Ms Caulfield, and the father, Mr Tennyson. The dispute involved determining the child's living arrangements, parental responsibility, and surname, against a backdrop of serious allegations and existing protection orders.

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

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 mother may do all things necessary to change the child’s surname from “Tennyson” to “Caulfield”.

The child shall live with the mother.

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.

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.

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.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

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

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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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