CHRISTY & YOUNG - [2020] FamCA 911

FAMILY COURT OF AUSTRALIA

CHRISTY & YOUNG

[2020] FamCA 911

FAMILY LAW – CHILDREN – Interim parenting – Where the mother contends that the children are at risk in the father’s care on the basis of sexual abuse allegedly perpetrated by the father’s partner towards the children – Where the mother proposes that she hold sole parental responsibility for the children and that the children spend very limited supervised time with the father at a contact centre – Where father denies that the children are at risk in his care on any basis and proposes orders that would see the parents equally share parental responsibility and the children spend substantial and significant time with him on an unsupervised basis – Where the ICL does not agree that it is in the children’s best interests for their time with the father to be limited and supervised by a professional agency and proposes orders that will see the children spend increased time with their father supervised by the paternal grandparents – Where on the available evidence it appears the children receive a benefit from maintaining a meaningful relationship with their father – Where the allegations of sexual abuse against the father’s partner have been investigated by JCPR and have been found to be unsubstantiated – Where it is unlikely that a court will assess that the children are at an unacceptable risk of harm in the care of either parent – Where it is not appropriate for any order to be made in relation to parental responsibility at this interim stage – Where it is appropriate to make orders relating to changeover and restraints on each party given the parental and interfamilial conflict which appears to be the most significant risk factor in the dispute.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Christy

RESPONDENT:

Mr Young

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid

FILE NUMBER:

PAC

5254

2019

DATE DELIVERED:

26 October 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

22 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Bainbridge Legal

SOLICITOR FOR THE RESPONDENT:

Mobile Legal Services

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid

ORDERS

Pending Further Order -

All previous parenting orders in relation to the children X born … 2014 and Y born … 2016 (“the children”) are hereby discharged.
The children live with the mother.
The children spend time with the father as follows:
(a)In the first weekend of each calendar month, from 10.00 am to 6.00 pm on the Saturday;
(b)In the third weekend of each calendar month, from 10.00 am to 6.00 pm on the Saturday;
(c)For the purposes of (a) and (b) above,…

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 CHRISTY & YOUNG

Details

AGLC: CHRISTY & YOUNG [2020] FamCA 911
Case: [2020] FamCA 911
Decision Date: 26 October 2020

CaseChat Overview and Summary

This matter concerned parenting orders for two children, X and Y, born in 2014 and 2016 respectively. The proceedings were before Hannam J in the Federal Circuit and Family Court of Australia. The court was required to determine the living arrangements and time spent between the children and their parents, as well as the conditions under which such time would occur.

The central legal issues before the court were the determination of the children's primary residence, the extent of the father's time with the children, and the necessary safeguards to ensure the children's welfare during that time. The court also had to consider orders restraining the parties from discussing the proceedings with the children or denigrating each other in their presence, and from publishing information about the proceedings or the children on social media.

Hannam J ordered that the children live with the mother and discharged all previous parenting orders. The father was granted time with the children on the first and third weekends of each month, from 10:00 am to 6:00 pm on the Saturday. Crucially, this time was to be supervised by the paternal grandparents, Ms B and Mr C, or either of them. The supervision conditions included ensuring the grandparents were present with the children when with the father, that the children were not left with the father's wife, and that the children be removed from the father's care if they experienced distress caused by him. Further orders detailed the process for changeovers, communication between the parties and the grandparents, and strict prohibitions against discussing the proceedings with the children or denigrating the other parent.

Orders

Orders of the court

Pending Further Order -

All previous parenting orders in relation to the children X born … 2014 and Y born … 2016 (“the children”) are hereby discharged.

The children live with the mother.

The children spend time with the father as follows:

(a) In the first weekend of each calendar month, from 10.00 am to 6.00 pm on the Saturday;

(b) In the third weekend of each calendar month, from 10.00 am to 6.00 pm on the Saturday;

(c) For the purposes of (a) and (b) above, the paternal grandparents, Ms B and Mr C, or either of them, shall be present to supervise the children’s time with the father.

For the purposes of supervision the paternal grandparents, or either of them shall:

(a) Ensure that they are present in the company of the children at the times that the children are in the care of the father;

(b) Ensure that the children are not left in the company of the father’s wife at any time;

(c) Remove the children from the care of the father if the children experience any distress that is caused by the father at any time;

(d) Ensure that the children are returned to the care of the mother early should the paternal grandparents not be in a position to supervise the entire period that is provided in Order (3) above.

For the purposes of Order (4) above, the mother shall provide the paternal grandparents with her mobile telephone number at all times and keep them informed in relation to any change.

For the purposes of changeover, the father shall send the mother a text message by no later than 6.00 pm on the Friday to advise her at which location the children will exercise time with him, and the mother shall cause the children to be delivered to the location. The paternal grandparents or either of them shall return the children to the mother either by way of their own mode of transport or as passengers with the father and the children in the father’s vehicle.

The parties are hereby restrained from:

(a) Discussing these proceedings with the children or permitting a third person from so doing;

(b) Denigrating the other parent to the children or in their hearing or presence or permitting a third person from doing so, or using social media platforms to do so; and

(c) Publishing any information on social media in relation to the children and/or in relation to the proceedings relating to the children.

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.