Deniz and Yilmaz - [2013] FamCA 252

FAMILY COURT OF AUSTRALIA

DENIZ & YILMAZ

[2013] FamCA 252

FAMILY LAW – CHILDREN – Where there are allegations of family violence – Whether the father and the paternal family pose a risk to the children – Where a psychiatric assessment of the parents is ordered – Where it could not be found that there is an unacceptable risk of sexual abuse – Where it is agreed that the mother have sole parental responsibility for the children – Whether the father spends time with the children – Where there is a loving attachment between the father and the children – Where the father seeks to spend time with the children on an unsupervised basis – Where the mother seeks orders whereby the children would spend no time with the father but he could communicate with them – Credibility – Where the parents were poor witnesses – Capacity – Where the single expert psychiatrist was not called for cross examination – Where the children are to spend no time with the father – Where the father may communicate with the children.

Briginshaw v Briginshaw (1938) 60 CLR 336

Champness & Hanson (2009) FLC 93-407

G & C [2006] FamCA 994

Johnson v Page (2007) FLC 93-344

Leighton & Carey [2010] FamCAFC 94

M v M (1988) 166 CLR 69

McCall & Clark (2009) FLC 93-405

Mazorski & Albright (2007) 37 Fam LR 518

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA
Evidence Act 1995 (Cth)

APPLICANT: FATHER

Mr Deniz

RESPONDENT MOTHER:

Ms Yilmaz

FILE NUMBER:

PAC

4311

2010

DATE DELIVERED:

17 April 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Loughnan J

HEARING DATES:

1, 2 & 3 November 2011 and 27 & 28 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT FATHER:

Mr Greenaway (1-3 November 2012 only)

SOLICITOR FOR THE APPLICANT FATHER

Barber Lawyers

COUNSEL FOR THE RESPONDENT MOTHER

Mr Weaver (1-3 November 2012)

Mr Schroder (27 & 28 March 2013)

SOLICITOR FOR THE RESPONDENT MOTHER

Adams & Partners

COUNSEL FOR THE INDEPENDENT CHILD LAWYER

Mr Fermanis

SOLICITOR FOR THE CHILD

Gonzales & Co.

Orders

1.All previous parenting orders relating to B born … March 2007 and C born … July 2008 are discharged.
2.The mother shall have sole parental responsibility for the children.
3.The children shall live with the mother.
4.The children shall spend no time with the father.
5.The parents shall take all reasonable steps to ensure that the father is able to communicate with the children as follows:
a.by the father sending letters, cards and gifts to the children at an address nominated by the mother; and
b.by the mother promptly sending the father a written acknowledgement of receipt of the father’s written communication.

6.Within fourteen (14) days from the date of these orders, the mother shall notify the father of her postal address for the purposes of the communication in order 5 above.
7.Each party is restrained from denigrating the other in the presence or hearing of the children or either of them,…

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 Deniz and Yilmaz

Details

AGLC: Deniz and Yilmaz [2013] FamCA 252
Case: [2013] FamCA 252
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered parenting orders concerning two children, B and C. The primary dispute revolved around the extent of the father's contact with the children, with the father seeking unsupervised time and the mother seeking no direct contact, but allowing for communication. Both parents were found to be poor witnesses, and a key piece of evidence, a psychiatric assessment, was not available for cross-examination.

The court was required to determine the best interests of the children in light of allegations of family violence and the potential risk posed by the father and his family. Specifically, the court had to assess whether there was an unacceptable risk of sexual abuse, and how to balance the father's desire for contact with the children against the mother's concerns and the children's welfare. The court also considered the existing loving attachment between the father and children.

Applying the principles of the *Family Law Act 1975* (Cth), particularly sections concerning the best interests of the child and the presumption of equal shared parental responsibility (which was displaced by agreement), the court found that it could not be satisfied that there was an unacceptable risk of sexual abuse. However, given the parents' poor credibility as witnesses and the lack of opportunity to cross-examine the expert psychiatrist, the court determined that the children should spend no time with the father. The court did, however, make orders to facilitate communication between the father and the children through letters, cards, and gifts.

The court ordered that all previous parenting orders be discharged, that the mother have sole parental responsibility for the children, and that the children live with the mother. Crucially, the children were ordered to spend no time with the father, but provisions were made for the father to communicate with them via mail. The orders also included restraints on denigrating the other parent and interrogating the children about the other's household, and obligations for the mother to notify the father of medical emergencies and provide school reports.

Orders