DODD & CARSON - [2011] FamCA 256

FAMILY COURT OF AUSTRALIA

DODD & CARSON

[2011] FamCA 256

FAMILY LAW - CHILDREN - Best interests of the child - Where there are allegations of sexual abuse of the child by the father

Family Law Act 1975 (Cth)

Johnson and Page (2007) FLC 93-344
Warsow & Warsow [2010] FamCA 591

APPLICANT:

Mr Dodd

RESPONDENT:

Ms Carson

INDEPENDENT CHILDREN’S LAWYER:

Grant & Associates

FILE NUMBER:

BRC

7589

2008

DATE DELIVERED:

13 April 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Fowler J

HEARING DATE:

30-31 August 2010,
1-2 September 2010,

24-25 and 27 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Boe, with him
Ms Gass

COUNSEL FOR THE RESPONDENT:

Mr Farr SC

COUNSEL FOR THE INDEPENDENT CHLDREN’SLAWYER:

Dr Sayers

Orders

The parties have equal shared parental responsibility for their child,

C (“the child”), born on … February 2002 subject to the exception set forth in Order 3(d).
The parties jointly make all relevant major decisions regarding the long-term care, welfare and development of the child, except in the case of emergency.
The procedure for making all relevant major decisions regarding the long-term welfare of the child is as follows:
(a)the party wishing to procure the consent of the other party shall provide in writing to the other party the proposal and the reasons therefore
(b)the other party, within seven (7) days of its receipt, shall notify in writing the proposing party as to whether he or she agrees with the proposal referred to in Order 3(a)
(c)in the event of disagreement, the other party, within seven (7) days of receipt of the notification referred to in Order 3(b), shall provide in writing to the proposing party notification of such disagreement and the reasons therefore; and the parties shall submit the disagreement to mediation by a mediator chosen by the proposing party from three recognised family law dispute mediators nominated by the other party
(d)in the event that mediation does not achieve agreement, the mother shall have sole parental responsibility for the making of the decision if it concerns the psychological or psychiatric treatment of the child or the education of the child.
The parties shall each have responsibility for the day-to-day care, welfare and development of the child while the child is living with or spending time with himself or herself.
The child shall live with the mother.
The child shall spend time with the father during the school term as follows:
(a)for two months, commencing 13 April 2011, each alternate weekend, from 9.00 am to 5.00 pm on Saturday
(b)
for the next ensuing three months, commencing 13 June 2011, each alternate weekend, from 9.00 am to 5.00 pm on Saturday and from

9.00 am to 5.00 pm on Sunday
(c)for the next ensuing three months, commencing 13 September 2011, each alternate weekend, from 9.00 am on Saturday to 5.00 pm on Sunday
(d)thereafter, commencing 13 December 2011, from the conclusion of school (or 3.00 pm if a non-school day) on Friday to the commencement of…

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

Case: [2011] FamCA 256
Decision Date: 13 April 2011

CaseChat Overview and Summary

In the matter of DODD & CARSON, heard before Fowler J, the dispute concerned parenting arrangements for the child, C, born in February 2002. The proceedings were brought in the context of allegations of sexual abuse of the child by the father.

The court was required to determine the best interests of the child in light of the allegations and to establish a parenting regime that would safeguard the child's welfare. Key issues included the allocation of parental responsibility, the nature and extent of the child's time with each parent, and the implementation of appropriate supervision and support mechanisms.

Fowler J ordered that the parties have equal shared parental responsibility for the child, subject to specific exceptions. The court established a detailed procedure for joint decision-making regarding the child's long-term care, welfare, and development, including provisions for mediation in cases of disagreement. Notably, in the event mediation failed, the mother was granted sole responsibility for decisions concerning the child's psychological or psychiatric treatment and education. The child was ordered to live with the mother, with specific, phased-in arrangements for the child to spend time with the father, initially under the supervision of the paternal grandmother. The orders also included provisions for special occasions, telephone contact, and a restraint on denigrating the other parent. Furthermore, the parties were ordered to attend a post-separation parenting course and to present themselves and the child to Child Dispute Services for explanation of the orders. The orders were to be supervised for one year, with detailed information regarding contravention consequences provided.

Orders

Orders of the court

The parties have equal shared parental responsibility for their child,

C (“the child”), born on … February 2002 subject to the exception set forth in Order 3(d).

The parties jointly make all relevant major decisions regarding the long-term care, welfare and development of the child, except in the case of emergency.

The procedure for making all relevant major decisions regarding the long-term welfare of the child is as follows:

(a) the party wishing to procure the consent of the other party shall provide in writing to the other party the proposal and the reasons therefore

(b) the other party, within seven (7) days of its receipt, shall notify in writing the proposing party as to whether he or she agrees with the proposal referred to in Order 3(a)

(c) in the event of disagreement, the other party, within seven (7) days of receipt of the notification referred to in Order 3(b), shall provide in writing to the proposing party notification of such disagreement and the reasons therefore; and the parties shall submit the disagreement to mediation by a mediator chosen by the proposing party from three recognised family law dispute mediators nominated by the other party

(d) in the event that mediation does not achieve agreement, the mother shall have sole parental responsibility for the making of the decision if it concerns the psychological or psychiatric treatment of the child or the education of the child.

The parties shall each have responsibility for the day-to-day care, welfare and development of the child while the child is living with or spending time with himself or herself.

The child shall live with the mother.

The child shall spend time with the father during the school term as follows:

(a) for two months, commencing 13 April 2011, each alternate weekend, from 9.00 am to 5.00 pm on Saturday

(b)

for the next ensuing three months, commencing 13 June 2011, each alternate weekend, from 9.00 am to 5.00 pm on Saturday and from

9.00 am to 5.00 pm on Sunday

(c) for the next ensuing three months, commencing 13 September 2011, each alternate weekend, from 9.00 am on Saturday to 5.00 pm on Sunday

(d) thereafter, commencing 13 December 2011, from the conclusion of school (or 3.00 pm if a non-school day) on Friday to the commencement of school (or 3.00 pm if a non-school day) on Monday (or Tuesday, if the Monday falls on a long weekend).

The time spent by the child with the father as set forth in Order 6(a), (b) and (c) shall be in the presence of and under the supervision of the paternal grandmother or such other person as the parties may agree in writing.

The first three months of the time spent by the child with the father as set forth in Order 6(d) shall be in the presence of and under the supervision of the paternal grandmother or such other person as the parties may agree in writing.

During the period of supervision as set forth in Orders 6-8, the child shall spend time with the father for up to four consecutive days of each school holiday period, in addition to any special occasions on which the child shall spend time with the father under these Orders. For the purpose of facilitating such time, the father shall give the mother written notice of the proposed dates at least one month prior to the first of those dates.

10.

Following the period of supervision as set forth in Orders 6-8, the child shall spend time with the father for one-half of each school holiday period as the parties may agree or, in the absence of agreement, for the first half in

even-numbered years and the second half in odd-numbered years.

11.

During the period of supervision as set forth in Orders 6-8, the child shall not spend any overnight time with the father other than at the paternal grandparent’s residence, unless otherwise agreed.

12.

Following the period of supervision as set forth in Orders 6-8, the child shall only spend overnight time with the father at a residence where there is separate sleeping accommodation for the child.

Special Occasions

13.

Notwithstanding any order to the contrary, the child shall spend time with the father from 3.00 pm on Christmas Eve to 3.00 pm on Christmas Day in

even-numbered years, and from 3.00 pm on Christmas Day to 5.00 pm on Boxing Day in odd-numbered years, unless otherwise agreed.

14.

The child shall spend time with the father on the child’s birthday (if the child is otherwise in the care of the mother on that day) as follows:

(a)

if the child’s birthday falls on a weekend, from 2.00 pm to 6.00 pm on that day in even-numbered years, and from 9.00 am to 2.00 pm in

odd-numbered years

(b) if the child’s birthday falls on a school day, as the parties may agree or, in the absence of agreement, from 4.00 pm to 6.00 pm on that day.

15.

The child shall spend time with the father on the father’s birthday (if the child is otherwise in the care of the mother on that day) as follows:

(a) if the father’s birthday falls on a weekend, from 9.00 pm to 5.00 pm on that day

(b) if the father’s birthday falls on a school day, from 4.00 pm to 6.00 pm on that day.

16.

The child shall spend time with the father from 9.00 am to 5.00 pm on Fathers Day (if the child is otherwise in the care of the mother on that day).

17.

The child shall spend time with the mother on the mother’s birthday (if the child is otherwise in the care of the father on that day) as follows:

(a) if the mother’s birthday falls on a weekend, from 9.00 am to 5.00 pm on that day

(b) if the mother’s birthday falls on a school day, from 4.00 pm to 6.00 pm on that day.

18.

The child shall spend time with the mother from 9.00 am to 5.00 pm on Mothers Day (if the child is otherwise in the care of the father on that day).

19.

During the period of supervision as set forth in Orders 6-8, the time spent by the child with the father as set forth in Orders 13-16 shall be in the presence of and under the supervision of the paternal grandmother or such other person as the parties may agree in writing.

Changeover

20.

On all occasions on which the child spends time with the father, the mother shall be responsible for delivering the child to the nominated address of the father at the commencement of that time, and the father shall be responsible for returning the child to the nominated address of the mother at the conclusion of that time, unless otherwise agreed.

Telephone Contact

21.

The mother shall facilitate the child making telephone calls to the father at any reasonable time.

22.

The father shall facilitate the child making telephone calls to the mother at any reasonable time.

23.

The father may telephone the child, while the child is in the mother’s care, at 6.15 pm each Monday, Wednesday and Friday.

24.

The mother may telephone the child, while the child is in the father’s care, at 6.15 pm once each two days unless otherwise agreed.

25.

Each party shall afford the child privacy in which she can communicate by telephone with the other party.

Other Matters

26.

Each party is restrained from saying or permitting anything to be said in the presence or hearing of the child which denigrates the other party or their relatives or partners, or which is a discussion of these proceedings.

27.

The parties shall enrol in and attend such post-separation parenting course as nominated by Mr P, the Family Consultant in these proceedings or, in the absence of such nomination, as nominated by the Director of Child Dispute Services.

28.

The parties and the child shall attend forthwith on the Child Dispute Services of this Court so that the parenting arrangements created by these Orders may be appropriately explained to the child by Mr P or such other Family Consultant as is nominated by the Director of Child Dispute Services.

29.

Pursuant to s 65L of the Family Law Act 1975 (Cth), these Orders shall be supervised for a period of one year from the date of these Orders so that the parties may during such period consult a Family Consultant of this Court for the purpose of seeking assistance in relation to compliance with or the carrying out of these Orders.

30.

Pursuant to Section 65DA(2) and Section 62B, 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 Fact Sheet attached to the engrossed Orders and these particulars are included in these Orders.

31.

All material produced in response to subpoenas is to be returned to the party who produced it.

32.

The matter is removed from the list of Active Pending Cases.

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

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