Dalziel and Belladonna - [2009] FamCA 254

FAMILY COURT OF AUSTRALIA

DALZIEL & BELLADONNA

[2009] FamCA 254

FAMILY LAW – CHILDREN – Magellan – allegations of sexual abuse – five year old child – allegations without foundation – no unacceptable risk – change of child’s residence

Family Law Act 1975 (Cth) ss 60B(1), 60CC(1)and (3 (4) and (4A)), 62DA, 65DAA(1) and (2), 69ZX(3), 91B
Evidence Act 1995 (Cth), s 140
Crimes (Family Violence) Act 1987

Hemiro & Sinla [2009] FamCA 181

FATHER:

Mr Dalziel

MOTHER:

Ms Belladonna

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

9183

2008

DATE DELIVERED:

7 April, 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

BROWN J

HEARING DATE:

16, 17, 18, 19, 20, 23 February, and 2 and 3 March, 2009

REPRESENTATION

COUNSEL FOR THE FATHER:

Mr. D. Sweeney

SOLICITOR FOR THE FATHER:

Matthew Oldham

COUNSEL FOR THE MOTHER:

(to 23 February, 2009)

Mr. D. Brown SC with

Mr. R. Hoult

SOLICITOR FOR THE MOTHER

(to 23 February, 2009)

Ken Smith & Associates

THE MOTHER:

(from 2March, 2009)

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr. N. Eidelson
INDEPENDENT CHILDREN’S LAWYER	Donald S. Lampe

Orders

That all previous parenting orders and injunctions which relate to the child R born … October, 2003 be discharged.
That the father have sole parental responsibility for the child.
That the child live with the father and to give force and effect to this order he collect her from the child minding room of the fifth floor of this registry of the court forthwith.
That the child spend time and communicate with the mother during the remainder of 2009 as follows :
(a)commencing on 26 April, 2009, on each alternate Sunday from 10:00 am. until 5:00 pm.;
(b)commencing on 4 May, 2009,on each alternate Monday (or such other day in that week on which the parties agree) from 4:30 pm. until 7:30 pm.;
(c)if the child would not otherwise spend time with the mother pursuant to these orders on 11 October, 2009, for four hours on … October, 2009 (being the day before the chlid’s birthday) at times to be agreed and, failing agreement, from 10:00 am. until 2:00 pm.;
(d)from 10:00 am. until 5:00 pm. on Boxing Day 2009;
(e)from the week commencing 11 May, 2009, by telephone on two days a week, the days and times to be agreed and, failing agreement, on Tuesday and Friday at 6:00 pm. and to give force and effect to this order :
(i)the father shall facilitate the phone call by the child to the mother;
(ii)each call shall be no longer than fifteen minutes; and
(iii)the father shall be at liberty to listen to the phone call and to terminate it if the mother raises with the child any matter referrable to her being abused (sexually, physically or emotionally) by the father;
(f)at such other times as are agreed.
That subject to any agreement between the parties to the contrary, all face-to-face contact between the mother and the child pursuant to paragraph (4) hereof be supervised…

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 Dalziel and Belladonna

Details

AGLC: Dalziel and Belladonna [2009] FamCA 254
Case: [2009] FamCA 254
Decision Date: 7 April 2009

CaseChat Overview and Summary

The case of *Dalziel and Belladonna* concerned a dispute between the parents regarding parenting orders for their child, R. The matter came before Brown J.

The court was required to determine the best interests of the child, R, in circumstances where the mother held a "distorted view" regarding allegations of sexual abuse by the father, which the court found to be untrue and emotionally and psychologically abusive to the child. Key issues included the impact of the mother's beliefs on R, the potential distress of separation from her mother, and the long-term implications of R continuing to live in a negative environment concerning her father.

Brown J reasoned that the mother's beliefs, regardless of their origin, were detrimental to R and denied her a meaningful relationship with her father. The court considered expert evidence regarding R's capacity to adapt to change, noting her capability and flexibility, and the strength of her relationship with her father. The court found that R's best interests would be served by removing her from a climate of negativity towards her father and that a primary home with the father would enable her to have a relationship with both parents. The court also considered the potential impact of separation from her sister, L, and noted that R was accustomed to periods of separation from L.

The court ordered that previous parenting orders and injunctions relating to R be discharged. The father was granted sole parental responsibility, and R was to live with him. Specific arrangements were made for R to spend time and communicate with the mother, with provisions for supervised contact in the short term and detailed arrangements for future contact, including telephone calls and correspondence. The court also made orders regarding school enrolment, attendance at school events, and restrictions on discussing the proceedings with R. Further orders addressed counselling, medical treatment, and the exchange of contact and address information between the parties. The independent children's lawyer was to be discharged, and the reasons for judgment were to be provided to various professionals and agencies.

Orders

Orders of the court

That all previous parenting orders and injunctions which relate to the child R born … October, 2003 be discharged.

That the father have sole parental responsibility for the child.

That the child live with the father and to give force and effect to this order he collect her from the child minding room of the fifth floor of this registry of the court forthwith.

That the child spend time and communicate with the mother during the remainder of 2009 as follows :

(a) commencing on 26 April, 2009, on each alternate Sunday from 10:00 am. until 5:00 pm.;

(b) commencing on 4 May, 2009,on each alternate Monday (or such other day in that week on which the parties agree) from 4:30 pm. until 7:30 pm.;

(c) if the child would not otherwise spend time with the mother pursuant to these orders on 11 October, 2009, for four hours on … October, 2009 (being the day before the chlid’s birthday) at times to be agreed and, failing agreement, from 10:00 am. until 2:00 pm.;

(d) from 10:00 am. until 5:00 pm. on Boxing Day 2009;

(e) from the week commencing 11 May, 2009, by telephone on two days a week, the days and times to be agreed and, failing agreement, on Tuesday and Friday at 6:00 pm. and to give force and effect to this order :

(i) the father shall facilitate the phone call by the child to the mother;

(ii) each call shall be no longer than fifteen minutes; and

(iii) the father shall be at liberty to listen to the phone call and to terminate it if the mother raises with the child any matter referrable to her being abused (sexually, physically or emotionally) by the father;

(f) at such other times as are agreed.

That subject to any agreement between the parties to the contrary, all face-to-face contact between the mother and the child pursuant to paragraph (4) hereof be supervised by:

(a) a person agreed to by the parties who is prepared to undertake that role; or

(b) failing agreement on such a person, a professional supervisor (save Ms. O)

and the expenses of supervision be borne by the mother.

That the child spend time with the mother :

(a) from 12:00 noon on 5 January, 2010 until 12:00 noon on 7 January, 2010; and

(b) from 12:00 noon on 15 January, 2010 until 12:00 noon on 22 January, 2010.

That commencing in the first school term 2010 the child spend time and communicate with the mother as follows :

(a) during school terms, and commencing on the first weekend of each school term , on each alternate weekend, from the conclusion of school on Friday until the commencement of school the following Monday (or, if Monday is a public holiday, the commencement of school on Tuesday);

(b) during school terms, and commencing on the second Thursday in each school term, from the conclusion of school on Thursday until the commencement of school the following Friday in each alternate week;

(c) for a week in each school term holiday period at times to be agreed and, failing agreement, from 9:00 am. on the first Saturday until 12:00 noon on the second Saturday;

(d) for one half of the summer school holiday period at times to be agreed and, failing agreement :

(i) the first half in 2010 and each alternate year thereafter; and

(ii) the second half in 2011 and each alternate year thereafter;

(e) from 5:00 pm. on Christmas Day until 5:00 pm. Boxing Day in 2011 and each alternate year thereafter;

(f) if Mothers’ Day falls on a weekend when the child would not otherwise spend time with the mother pursuant to these orders, on that weekend in lieu of the preceding weekend;

(g) if the child would not otherwise spend time with the mother pursuant to these orders on the child’s birthday, for a period on her birthday at times to be agreed and, failing agreement :

(i) if the birthday falls on a school day, from the conclusion of school until 6:30 pm.; and

(ii) if the birthday falls on a non-school day, for four hours at times to be agreed and, failing agreement, from 10:00 am. until 2:00 pm.;

(h) reasonable communication by :

(i) telephone and email PROVIDED THAT until the child is ten years old, the father be at liberty to listen to the child’s telephone calls with the mother and read emails to the child from the mother; and

(ii) by correspondence sent by ordinary pre-paid post, being cards or short notes PROVIDED THAT no more than one item be sent by the mother in any one week.

(i) at such other times as are agreed between the parties.

That notwithstanding the provisions of paragraph (7)(d)(i) hereof, the child shall live with the father from 5:00 pm. on Christmas Day until 5:00 pm. on Boxing Day in 2010 and each alternate year thereafter.

That if the child would not otherwise live with the father on Fathers’ Day pursuant to these orders, the mother shall spend time with the child on the previous weekend in lieu of the weekend on which Fathers’ Day falls.

10.

That as soon as practicable the father enrol the child at the school she is to attend from the commencement of term 2 in 2009 and advise the mother in writing of the name and address of such school and thereafter keep her advised of any change in the school attended by the child from time to time.

11.

That the father authorise the principal of each school attended by the child to provide to the mother, at her expense, if any:

(a) a copy of each school report for the child; and

(b) a copy of each order form for school photos;

and this order shall stand as authority to the principal of each school attended by the child from time to time to comply with such requests.

12.

That for the balance of the 2009 school year, the mother be and is hereby restrained by herself, her servants and agents from attending the child’s school, save with the written consent of the father.

13.

That from the commencement of the first school term in 2010, the mother be at liberty to attend events, activities and functions at the child’s school which are routinely attended by parents PROVIDED THAT save pursuant to these orders the mother shall not remove the child from school without the written permission of the father.

14.

That the father be and is restrained, by himself, his servants and agents, from attending at the child’s school at the conclusion of a school day on which the mother is to collect the child for time pursuant to these orders or the commencement of a school day on which the mother is to deliver the child pursuant to these orders, unless an event, activity or function routinely attended by parents occurs at such time.

15.

That the mother be and is restrained, by herself, her servants and agents, from attending at the child’s school at the commencement or conclusion of a school day, save on a day on which she is to collect or deliver the child pursuant to these orders, or if an event, activity or function routinely attended by parents occurs at that time.

16.

That as soon as practicable the father provide a sealed copy of this order to the principal of the school at which he enrols the child and the principal of each school attended by her thereafter.

17.

That save with the consent in writing of the father, the mother be and is restrained by herself, her servants and agents from taking the child for any form of counselling, treatment or intervention which relates to an allegation that she has been sexually or physically abused by the husband or another person whilst in his care, or is at risk of being so abused, save if directed to do so by :

(a) a person employed by the Department of Human Services involved in the investigation of any subsequent complaint;

(b) a member of Victoria Police, investigating any subsequent complaint; or

18.

That save with the consent in writing of the father, the mother be and is hereby restrained by herself, her servants and agents from taking the child to any medical practitioner, psychiatrist, psychologist, counsellor or like professional, save in the event of a medical emergency while in her care.

19.

That save to the extent necessary to give force to paragraph (20) hereof, each of the parties by themselves, their servants and agents, be and are hereby restrained from discussing the evidence adduced in these proceedings and the judgment herein in the presence or hearing of the child.

20.

That the independent children’s lawyer arrange an appointment for the father and the child to attend Ms. D as soon as practicable hereafter for the purpose of Ms. D explaining to the child the nature and effect of these orders, and the father be responsible for the costs of that attendance.

21.

That each of the parties keep the other advised of his/her current residential address and a telephone number at which he/she can be contacted in an emergency.

22.

That within fourteen days hereof the mother advise the father in writing of the telephone number to which calls should be made by the child pursuant to paragraphs (4)(e) and (7)(h)(i) hereof, and thereafter keep him advised of any change in that telephone number.

23.

That within fourteen days hereof the father advise the mother of :

(a) an email address to which emails for the child can be sent pursuant to these orders; and

(b) an address to which correspondence for the child may be posted pursuant to these orders;

and thereafter keep the mother advised of any change of postal address or email address.

24.

That each of the parties advise the other, as soon as practicable, of any significant illness or injury suffered by the child when in his or her care, including the name of each treating medical practitioner or like professional.

25.

That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.

26.

That a copy of the reasons for judgment herein may be provided to :

(a) the principal of each school attended by the child from time to time and, in his/her absolute discretion, any member of staff of that school who works with the child;

(b) any medical practitioner, psychiatrist, psychologist, counsellor or like professional consulted by the child;

(d) Ms. G;

(d) the Department of Human Services and any DHS employee or member of a police force investigating any subsequent allegation which involves the child.

27.

That all extant applications be otherwise be dismissed.

28.

That these applications be removed from the List of matters awaiting finalisation.

29.

That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

30.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including, to 23 February, 2009, senior counsel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Whether the mother’s distorted view is the product of malice or genuine conviction, is attributable to something in her own past or to her personal pathology, matters little when assessing the impact on R. I have no hesitation in finding it is emotionally and psychologically abusive to bring up R to believe she has been sexually abused by her father, when she has not, and to deny her a meaningful relationship with him. (d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :(i) either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; R has lived all her life with her mother and the court must think carefully before changing such a long-standing status quo. Ms. D was confident that R’s short term distress at separation from her mother could be handled, if she is reassured and explanations (such as her mother being on holidays) given during any initial period in which she did not see her mother after a move. She described R as a capable and flexible child and her opinion clearly took into account the strength of the relationship observed between R and the father, and R’s very comfortable relationship with Ms. E. As for the longer term, R would be able to have a relationship with both parents if her primary home were with her father. If she stays where she is, it is probable her mother will sabotage any orders for time with her father. Findings have previously been made about the relationship between R and L. I do not doubt R would miss her sister in the short term. Time with her mother could, in due course, be scheduled to coincide with the weekends L spends with her mother. On the mother’s evidence, the court can find that R is used to her sister going off to spend weekends and holiday times with Mr. Belladonna; the girls are apart for quite a significant portion of their free time. If the mother is right, and L believes R has been abused, that may well inform L’s discussions with R when they are together, as well as when they are with their mother. Removal from a climate in which all discussion of her father is negative, is in R’s best interests. R is familiar with the father’s N home; it was her home from birth till July 2006 and she has returned there in 2007 and, again, between October 2008 and January 2009. That should assist her in settling. It is probable she will have to change school which is unfortunate. It is her first year of school and no evidence satisfies me she will not be able to cope with starting at a new school in the second term this year. Ms. D’s evidence was that the mother’s time with R should be supervised in the short term, if R moved to live with her father. She spoke about the potential for a trusted person to be in substantial attendance, at least until the end of 2009. She saw time on one day per fortnight, with some other time in the off week, after school, in the N area, as appropriate in the short term.