COHEN & GREEN - [2017] FamCA 251

FAMILY COURT OF AUSTRALIA

COHEN & GREEN

[2017] FamCA 251

FAMILY LAW – CHILDREN – With whom the child lives – Where the child has secure relationships with both parents – Where the mother was the primary caregiver – Where both parties had an impaired capacity to meet the child’s emotional needs – Where the father is unable to care for the child alone due to work commitments – Where the mother has full-time availability to care for and supervise the child –Where the child has a strong bond with her maternal half-sibling – Where the Family Consultant opined the child should live with the mother if the Court was satisfied of the mother’s ability to protect the child from the risk of harm posed by her ex-partner – Ordered the child live with the mother

FAMILY LAW – CHILDREN – With whom the child lives – Child’s views – Where the views expressed by the child and the force with which she expressed them were an important feature of the evidence – Where the child was observed to repeatedly and plaintively express a wish to live with the mother – Decided the child’s views should be given considerable weight, since she despairs separation from the mother and her maternal half-sibling.

FAMILY LAW – CHILDREN – With whom the child spends time – Injunction – Where it was alleged the mother’s ex-partner sexually abused the child – Where the evidence of sexual abuse alone might not be sufficient to establish an unacceptable risk of harm but, in aggregation with the evidence of family violence, the mother’s ex-partner poses an unacceptable risk of harm to the child – Ordered the parties are restrained from causing or permitting the child to be or remain in the presence of the mother’s ex-partner and the child’s residence with the mother is conditional upon compliance with that injunction

Family Law Act1975 (Cth), ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Dundas & Blake [2013] FamCAFC 133
M v M (1988) 166 CLR 69

APPLICANT:

Ms Cohen

RESPONDENT:

Mr Green

INDEPENDENT CHILDREN’S LAWYER:

NLS Law

FILE NUMBER:

NCC

2846

2015

DATE DELIVERED:

27 April 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

4, 5 & 6 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Davies

SOLICITOR FOR THE APPLICANT:

Aboriginal Legal Service

COUNSEL FOR THE RESPONDENT:

Mrs J Kearney

SOLICITOR FOR THE RESPONDENT:

Arnold Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr T Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

NLS Law

Orders

All former parenting orders in respect of the child B, born … 2011, (“the child”) are discharged.
The mother and father shall have equal shared parental responsibility for the child.
Subject to compliance with Order 9 hereof, the child shall live with the mother.
The mother and father shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise…

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.

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Details

AGLC: COHEN & GREEN [2017] FamCA 251
Case: [2017] FamCA 251
Decision Date: 27 April 2017

CaseChat Overview and Summary

In the matter of *Cohen & Green*, Austin J of the Family Court of Australia determined parenting orders concerning a child, B. The dispute centred on with whom the child should live, given the child’s secure relationships with both parents, the mother’s primary caregiver role, and the parents' respective capacities to meet the child's emotional needs. The father's work commitments limited his ability to care for the child alone, while the mother had full-time availability. The child also shared a strong bond with her maternal half-sibling.

The court was required to consider several legal issues, including the child’s best interests, specifically where the child should live, and the weight to be given to the child’s expressed views. A significant issue was the risk of harm to the child, with allegations of sexual abuse by the mother’s ex-partner, which, when aggregated with evidence of family violence, was considered to pose an unacceptable risk. The court also had to determine appropriate time spent arrangements and consider injunctive relief to protect the child.

Austin J reasoned that the child’s expressed wishes to live with the mother and remain with her maternal half-sibling were of considerable importance and should be given significant weight. The court found that while the mother had an impaired capacity to meet the child’s emotional needs, her full-time availability and the child’s strong bond with her maternal half-sibling weighed in favour of the child living with her. Crucially, the court was satisfied that the mother could protect the child from the risk of harm posed by her ex-partner. The court ordered that the child live with the mother, subject to compliance with an injunction restraining the parties from allowing the child to be in the presence of the mother’s ex-partner. Equal shared parental responsibility was ordered, and detailed time spent arrangements were made for the child to spend time with the father.

Orders

Orders of the court

All former parenting orders in respect of the child B, born … 2011, (“the child”) are discharged.

The mother and father shall have equal shared parental responsibility for the child.

Subject to compliance with Order 9 hereof, the child shall live with the mother.

The mother and father shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

(a) On the child’s birthday, between 4.00 pm and 7.00 pm;

(b) During school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on 5 May 2017 and thereafter on the first Friday of each term;

(c) During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every odd numbered year and for the second half of such holidays in every even numbered year; and

(d) During the Summer 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 odd numbered year and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.

For the purposes of implementation of Order 4 hereof, the school holidays are deemed to commence at 5.00 pm on the last day of school term, the holidays are deemed to end at 5.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid-point is noon on the day halfway between those first and last days.

Order 4 hereof is suspended during the following periods:

(a) From noon on Christmas Eve until noon on Boxing Day each year, during which period the child will spend time with the father from noon on Christmas Day until noon on Boxing Day and with the mother from noon on Christmas Eve until noon on Christmas Day in odd numbered years, with the same arrangements in reverse in even numbered years.

(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 the Father’s Day weekend.

For the purposes of implementing Orders 3, 4 and 6 hereof, the parties shall cause the child to be exchanged between them at the Hungry Jacks Restaurant at Suburb C, NSW.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

(a) The father each Tuesday and Thursday at 5.00 pm, when the child is living with the mother, 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.

(b) The mother each Tuesday and Thursday at 5.00 pm, when the child is spending time with the father, 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.

The parties are restrained from causing or permitting the child to be or remain in the physical presence of Mr D.

10.

The parties are restrained from causing or permitting the child to refer to any person other than them by use of the terms “Mum” and “Dad” (or any derivative thereof) respectively.

11.

The parties are 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.

12.

Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party and shall notify any treating health professionals that the parties have equal shared parental responsibility for the child.

13.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

14.

The mother shall forthwith procure, and the parties shall thereafter maintain, a communication book to facilitate communication between them in respect of issues related to the child and each party shall relay important information concerning the child to the other by way of written notification in the communication book, which will travel with the child at change-overs.

15.

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.

16.

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

17.

Costs are reserved for 28 days.

18.

Any and all other outstanding applications are dismissed.

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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