CERWIN & CERWIN (No.2) - [2019] FCCA 3339

FEDERAL CIRCUIT COURT OF AUSTRALIA

CERWIN & CERWIN (No.2)

[2019] FCCA 3339

Catchwords:
FAMILY LAW – Interim arrangement for child to spend time with her father – allegations of sexual abuse – father denies allegations and asserts mother is alienating the child from him – assessment of risk of sexual abuse at interim stage – is risk of harm to child unacceptable if she spends time with father – what is proportionate response to degree of risk arising – questions to be asked – best interests – meaningful relationship.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

M & M (1988) 82 ALR 577

N & S (1995) 19 Fam LR 837

Slater & Light (2013) 48 Fam LR 573

W & W [2007] FMCAfam 602

Applicant:

MS CERWIN

Respondent:

MR CERWIN

File Number:

ADC 4232 of 2012

Judgment of:

Judge Brown

Hearing date:

4 October 2019

Date of Last Submission:

4 October 2019

Delivered at:

Adelaide

Delivered on:

4 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms Lindsay

Solicitors for the Applicant:

Harry Alevizos

Counsel for the Respondent:

Mr Dillon

Solicitors for the Respondent:

Carlin Lawyers

ORDERS

The child X to spend time with the father from 10.00am Monday 7 October 2019 until Q Airlines departs Adelaide for City B on 13 October 2019.
To give effect to the terms of this order, the child is to be exchanged between the maternal grandfather and the child’s aunt, Ms R, at the father’s home located at S Street, Suburb T, SA.
The father be restrained, and an injunction be hereby granted restraining the father, from:
(a)Imposing on the child’s privacy while she is bathing, showering or undertaking her ablution’s; or
(b)Entering her bedroom after she has retired for the night without her permission.
Father arrange for child to have telephone time on 6.00pm Thursday 10 October 2019 and Saturday 12 October 2019 at 6.00pm.
Further consideration of the matter is adjourned part-heard to 8 October 2019 at 9.45am for directions NOTING the parties are excused from attending if they wish.

IT IS NOTED that publication of this judgment under the pseudonym Cerwin & Cerwin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4232 of 2012

MR CERWIN

Applicant

And

MS CERWIN

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally during the hearing of the parties’ competing applications. Given that they have been referred to in the subsequently delivered final judgment, I have arranged for them to be transcribed.
The parties who are involved in this matter are Ms Cerwin and Mr Cerwin, and they are the parents of a child, X, who was born in 2007, so X is 11 years of age, and she will be 12 early next year. It is common ground between the parties that she is a child who is entering puberty, so issues to do with her privacy and autonomy are relevant.
Essentially,…

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 CERWIN & CERWIN (No.2)

Details

AGLC: Cerwin and Cerwin (No.2) [2019] FCCA 3339
Case: [2019] FCCA 3339
Decision Date: 4 October 2019

CaseChat Overview and Summary

In *Cerwin & Cerwin (No.2)*, the Family Court of Australia considered an interim arrangement for a child, X, to spend time with her father. The mother alleged sexual abuse by the father, which the father denied, asserting instead that the mother was alienating the child from him. The central dispute revolved around assessing the risk of sexual abuse to the child at this interim stage and determining a proportionate response to any identified risk, while also considering the child's best interests and the importance of a meaningful relationship with her father.

The court was required to determine whether the risk of harm to the child was unacceptable if she spent time with her father. This involved weighing the competing allegations and assessing the degree of risk arising from the alleged sexual abuse. The court also had to consider what constituted a proportionate response to that risk, balancing the need for the child's protection with the principle of maintaining a meaningful relationship with both parents.

Judge Brown applied principles relating to the assessment of risk of harm to children in family law proceedings, particularly at the interim stage. The court considered the best interests of the child as paramount and acknowledged the importance of a meaningful relationship with the father. The reasoning focused on a practical and proportionate approach to managing any identified risk, rather than making definitive findings of fact at this preliminary stage.

The court ordered that the child X spend time with the father from 10.00 am on Monday 7 October 2019 until the child's flight departure on 13 October 2019. Specific exchange arrangements were made involving the maternal grandfather and the child's aunt. Crucially, the father was restrained by injunction from imposing on the child's privacy during bathing or ablutions, and from entering her bedroom after she retired for the night without her permission. The father was also ordered to arrange telephone contact for the child on two specified evenings. The matter was adjourned for further consideration and directions.

Orders

Orders of the court

The child X to spend time with the father from 10.00am Monday 7 October 2019 until Q Airlines departs Adelaide for City B on 13 October 2019.

To give effect to the terms of this order, the child is to be exchanged between the maternal grandfather and the child’s aunt, Ms R, at the father’s home located at S Street, Suburb T, SA.

The father be restrained, and an injunction be hereby granted restraining the father, from:

(a) Imposing on the child’s privacy while she is bathing, showering or undertaking her ablution’s; or

(b) Entering her bedroom after she has retired for the night without her permission.

Father arrange for child to have telephone time on 6.00pm Thursday 10 October 2019 and Saturday 12 October 2019 at 6.00pm.

Further consideration of the matter is adjourned part-heard to 8 October 2019 at 9.45am for directions NOTING the parties are excused from attending if they wish.

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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