Connors and Prichard - [2016] FamCA 1114

FAMILY COURT OF AUSTRALIA

CONNORS & PRICHARD

[2016] FamCA 1114

FAMILY LAW – CHILDREN – Allegations of abuse – Whether the father presents an unacceptable risk of harm to the child – Whether the mother has fabricated allegations of sexual abuse against the father – Whether the child is at an unacceptable risk of psychological abuse in the mother's care – Where there are other allegations against the father by people who have no connection to the mother – Where the allegations of sexual abuse of the child by the father are unsubstantiated – Where weight is placed on the overall evidence of sexual impropriety by the father towards several complainants – Where there is a risk to the child in the father's unsupervised care – Where the risk is unacceptable – Where the assumption of equal shared parental responsibility is rebutted – Where the child has been exposed to family violence in the mother's care – Where the child is at risk of neglect and exposure to drug use in the mother's care – Where the child is to live with the mother and spend ongoing supervised time with the father – Where the Department of Communities, Child Safety and Disability Services is requested to undertake a thorough investigation and assessment of the mother.

Family Law Act 1975(Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 65DAA, 65DAC

Evidence Act 1995 (Cth) ss 55, 140

Banks & Banks (2015) FLC 93-637
Fardon v Attorney General (Qld) (2004) 210 ALR 50
Jones v Dunkel (1959) 101 CLR 298
M & M (1988) 166 CLR 69

Re: H& Ors (1996) 1 All ER 1
The Marriage of N & S (1996) FLC 92-655

APPLICANT:

Mr Connors

RESPONDENT:

Ms Prichard

INDEPENDENT CHILDREN’S LAWYER:

Catherine Burchill

FILE NUMBER:

BRC

9492

2015

DATE DELIVERED:

22 December 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

7 - 10 November 2016 and written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Oakley

SOLICITOR FOR THE APPLICANT:

KLM Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Anderson

SOLICITOR FOR THE RESPONDENT:

Berck Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Burchill & Horsey Lawyers

Orders

Ms Prichard (“the mother”) shall have sole parental responsibility for B born on … 2008 (“the child”).
The child shall live with the mother.
Mr Connors (“the father”) shall spend time and communicate with the child as follows:
(a) Each alternate Saturday for up to eight hours if that can be accommodated by the Children’s Contact Centre Suburb C (“Contact Centre”) either at the Contact Centre or at some other place at the discretion of the Practice Leader (or other person in charge) of the Contact Centre but in any event for the maximum time available by the Contact Centre on condition that any time is supervised by a person nominated by the Practice Leader (or other person in charge) of the Contact Centre;
(b) For make-up time on 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 Connors and Prichard

Details

AGLC: Connors and Prichard [2016] FamCA 1114
Case: [2016] FamCA 1114
Decision Date: 22 December 2016

CaseChat Overview and Summary

In *Connors and Prichard*, heard by Carew J, the dispute concerned parenting orders for a child born in 2008. The orders addressed issues of parental responsibility, the child's living arrangements, and the father's time and communication with the child.

The court was required to determine the most appropriate parenting arrangements for the child, considering the welfare and best interests of the child. This involved deciding who would have sole parental responsibility, where the child would live, and the nature and extent of the father's contact with the child, including provisions for supervised time and communication.

Carew J ordered that the mother have sole parental responsibility and that the child live with her. The father's time with the child was significantly restricted, to be exercised on alternate Saturdays for a maximum of eight hours, supervised by a person nominated by the Children's Contact Centre. Further provisions were made for make-up time, telephone contact on the child's birthday, and the sending of cards and gifts. The court also made orders regarding the equal and sole bearing of costs associated with supervised time, the father's liberty to attend supervised time with family members, and the exchange of residential and contact details between the parents. Crucially, the court requested the Department of Communities, Child Safety and Disability Services to undertake a full assessment of the mother's living conditions and any associated risks, noting that the mother was not considered a reliable source of information. The Independent Children's Lawyer was discharged, and outstanding applications were dismissed.

Orders

Orders of the court

Ms Prichard (“the mother”) shall have sole parental responsibility for B born on … 2008 (“the child”).

The child shall live with the mother.

Mr Connors (“the father”) shall spend time and communicate with the child as follows:

(a) Each alternate Saturday for up to eight hours if that can be accommodated by the Children’s Contact Centre Suburb C (“Contact Centre”) either at the Contact Centre or at some other place at the discretion of the Practice Leader (or other person in charge) of the Contact Centre but in any event for the maximum time available by the Contact Centre on condition that any time is supervised by a person nominated by the Practice Leader (or other person in charge) of the Contact Centre;

(b) For make-up time on the Saturday immediately following any Saturday referred to in the preceding subparagraph in the event the child does not attend the Contact Centre for any reason;

(d) By sending a card and gift to the child’s residence on her birthday, Easter and Christmas.

Any costs associated with the first two hours of supervised time shall be borne equally by the mother and father but any additional cost shall be borne solely by the father.

The father shall be at liberty to attend any of the time at the Contact Centre (or elsewhere) with up to two members of the paternal family (subject to any direction by the Contact Centre supervisor).

The mother shall keep the father advised at all times of her residential address, email address and mobile telephone number.

The father shall keep the mother advised at all times of his residential address, email address and mobile telephone number.

The mother shall keep the father informed of the name and contact details for any medical practitioner or allied health professional providing treatment or assessment of the child and this Order is sufficient authority for any such person to provide the father with information relating to the child (at his cost).

The mother shall keep the father informed of the name and contact details for any school attended by the child and this Order is sufficient authority for the school to provide the father with information relating to the child including report cards (at his cost).

10.

The Independent Children’s Lawyer is requested to forthwith provide a copy of this Order and the Reasons for Judgment to the Department of Communities, Child Safety and Disability Services (“the Department”) with a request that the Department undertake a full assessment of the living conditions of the mother and any risks associated with the child living with the mother.

Miscellaneous

11.

All outstanding applications are dismissed and removed from the list of cases awaiting finalisation.

12.

The Independent Children’s Lawyer is discharged effective from 31 March 2017.

13.

Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto. These particulars are included in this Order.

NOTATION

It is requested that the Department undertake an risk assessment of the child’s living arrangements with the mother and for that purpose interview Mr D (the alleged partner of the mother), the mother’s parents, the teachers at the child’s school and that the Department arrange a comprehensive assessment of the child’s medical and psychological needs and in particular an urgent review of her current medication and the need for it. It should be noted that in the view of the Court the mother is not a reliable source of information and nothing she says should be taken at face value.

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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