FAMILY COURT OF AUSTRALIA
| DONAGHEY & DONAGHEY | [2011] FamCA 13 |
| FAMILY LAW – CHILDREN – Best interests of the child – Allegations of sexual abuse of child by the father – Allegation of unacceptable risk of sexual abuse – Where allegations arose after son spent limited unsupervised time with his father pursuant to court orders – Where father’s girlfriend attended each visit with the father – Whether there is an unacceptable risk of sexual abuse – Where the son lives with the mother – Where the child has spent little time with his father since the parents separated – Where the father seeks orders that the son live with him and that time between the son and his mother be suspended for a significant period – Where the mother seeks orders that son live with her and have no contact with the father – With whom a child shall live – With whom a child spends time |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Rules 2004 (Cth) |
| B & B [1993] FLC 92-357; (1993) 16 Fam LR 353 B and R and the Separate Representative (1995) FLC 92-636; [1995] 19 Fam LR 594 Devries v Australian National Railways Commission (1993) 177 CLR 472 Donaghey v Donaghey [2009] FMCAfam 1248 Donnell v Dovey (2010) 42 Fam LR 559 Goode v Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 Hardie v Capris [2010] FamCA 1046 In The Marriage of N and S (1995) 19 Fam LR 837; [1996] FLC 92-655 M v M (1988) 166 CLR 69 M & M (Unreported, Family court of Australia, Fogarty, Baker & Butler JJ, Appeal SA44 of 1992, 8 September 1993) Marsden v Winch(N.o 3) [2007] FamCA 1364 McCall v Clark (2009) FLC 93-405 McCoy v Wessex (2007) 38 Fam LR 513 MRR v GR (2010) 240 CLR 461; (2010) 42 Fam LR 531 Mulvany v Lane [2009] FLC 93-404 Napier v Hepburn (2006) 36 Fam LR 395 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Partington v Cade (No 2) (2010) 42 Fam LR 401 Potter v Potter (2007) 37 Fam LR 208 Re Andrew (1996) 20 Fam LR 538 Russel v Close (Unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993) Schorel and Schorel [1990] FLC 90-144 |
B. Mahendra, ‘Psychiatric Risk Assessment in Child and Family Law’ (2008) 38 Family Law 569
Ceci, and Bruck, ‘Suggestibility of the Child Witness: A Historical Review and Synthesis’ (1993) 113 Psychological Bulletin 3
J. Fogarty AM ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249
Wilson J, Atkin Lecture, The Misnomer of Family Law, 2002 cellpadding="0" cellspacing="0">
| RESPONDENT: | Ms Donaghey |
| INDEPENDENT CHILDREN'S LAWYER: | Julie Fotheringham |
| FILE NUMBER: | LEC | 85 | of | 2007 |
| DATE DELIVERED: | 19 January 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 13,… |
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- AGLC
- Donaghey & Donaghey [2011] FamCA 13
- Case
- [2011] FamCA 13
- Decision Date
CaseChat Overview and Summary
The court was required to determine issues relating to parental responsibility for long-term decisions, the child's living arrangements, the nature and extent of time the child would spend with each parent, and communication between the child and the mother. Additionally, the court considered the need for supervised contact and the provision of information regarding the child's health and education.
Murphy J ordered that the father have sole parental responsibility for all major long-term issues, subject to a process of advising the mother in writing, seeking her response, considering it in the child's best interests, and then advising her of the final decision. The child was ordered to live with the father, with a supervised changeover facilitated by a Family Consultant. The mother was initially prohibited from spending time or communicating with the child, with supervised time and limited communication to commence thereafter, gradually transitioning to unsupervised time and more extensive communication as specified in the orders. The father was also ordered to facilitate the mother's access to information about the child's health and education, with specific exceptions.
The court further ordered that compliance with changeover arrangements and parenting orders be supervised by a Family Consultant, who would provide assistance to the parties. The Independent Children's Lawyer was discharged three months from the date of the orders, and all extant applications were dismissed. The orders also included provisions for the publication of the proceedings and the return of documents and exhibits.
Orders
Orders of the court
The following parenting orders are made in respect of the child the subject of these proceedings, J born … August 2004 (“the child”).
Parental Responsibility
1.
That the father shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) (“the Act”)) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:
a. Advise the mother in writing of the decision intended to be made;
b. Seek the mother’s written response in relation thereto;
c. Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d. Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
Live With
2.
The child shall live with his father.
3.
So as to give effect to paragraph 2 of these Orders, the mother shall present the child to the Manager, Child Dispute Services, or such Family Consultant as he might nominate, at the Child Dispute Services, 3rd floor, Brisbane Registry, Family Court of Australia at 10.00am on Friday 21st January 2011, at which time and place changeover into his father’s care shall take place.
Time with the Mother
4.
The mother shall spend no time, nor communicate, with the child before 4.00pm on Friday 11th February, 2011.
5.
As and from Saturday 12th February 2011 until Saturday 3rd December 2011, time between the child and his mother shall be supervised by a person agreed upon in writing by the father, mother and Independent Children’s Lawyer and, failing such agreement, at a contact centre and shall occur as follows:
a. From Saturday 12th February 2011 until and including Saturday 23rd April 2011, between 9.00am and 11.00am each alternate Saturday;
b. From Saturday 7th May 2011 until and including Saturday 3rd December 2011 between 9.00am and 5.00pm, or such lesser period of time between those hours as can be accommodated by the agreed supervisor or contact centre as the case may be, on the first, second and fourth Saturday each calendar month;
6.
As and from Saturday 10th December 2011, time between the child and his mother may be unsupervised and shall occur at all such times as the mother and father may agree in writing and failing any such agreement:
a. From 9.00am on Saturday 10th December 2011 until 5.00pm on Saturday 17th December 2011;
b. From 5.00pm on Saturday 24 December 2011 until 12 noon on Sunday 25th December 2011;
c. From 9.00am on Saturday 14th January 2012 until Saturday 21st January 2012;
d. Thereafter:
i. From after school on the first Friday of the school term until before school the following Monday and between those times on those days on the first, second and fourth weekend of each calendar month thereafter with such time extending to before school Tuesday in the event that any such period of time coincides with a Monday public holiday;
ii. For the first half of each period of school holidays in 2012 and each alternate year thereafter and for the second half of each period of school holidays in 2013 and each alternate year thereafter;
iii. On the child’s birthday for a period of four hours after school if on a school day and such that each of his parents spend one half of the period between 9.00am and 5.00pm if on a weekend;
iv. From 12 noon Christmas Day until 12 noon Boxing Day in 2012 and between those hours on those days each alternate year thereafter and between 12 noon Christmas Eve and 12 noon Christmas Day in 2013 and each alternate year thereafter.
Section 65L Supervision
7.
Pursuant to Section 65L of the Family Law Act 1975:
a. Compliance by the parties with changeover arrangements ordered pursuant to paragraph 3 of these orders shall be supervised and facilitated by a Family Consultant nominated by the Manager of Child Dispute Services;
b. Compliance with these parenting orders is to otherwise be supervised by such Family Consultant of the Family Court of Australia Brisbane Registry as might be nominated by the Manager of same;
c. The said Family Consultant shall give any party to these parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;
d. The parties shall do all such things, sign all such documents, attend all such appointments, and ensure the child attend all such appointments, as are reasonably necessary for the purposes of same.
Communication
8.
As and from Saturday 10th February 2011 the mother may communicate with the child at such times and via such means as the parties may in writing agree and failing agreement, the mother may communicate with the child only by sending to him such cards and/or letters and/or photos as she may choose, but only via Australia Post sent to the residential address of the father and child.
9.
As and from Saturday 10 December 2011, the mother may communicate with the child at such times and via such means as the parties may in writing agree and failing agreement:
a. By e-mail, but not earlier on any occasion than 8.00am and not later on any occasion than 8.00pm and not more than two per day;
b. By Skype, or other similar computer communication, or by telephone twice in any week in which she does not spend time with the child and once in any week in which she spends time with him, but not earlier on any occasion than 8.00am and not later on any occasion than 8.00pm.
10.
So as to give effect to paragraph 9 of these Orders, the father shall, by not later than 4.00pm on 27 November 2011:
a. Provide to the mother an e-mail address for the child;
b. Purchase and install such equipment and/or logistics as might be necessary so as to permit communication by email, Skype or similar computer communication system.
Specific Issues
11.
The father shall:
a. Advise the mother and keep her advised of the child’s residential address, school, usual treating general practitioner, any specialist medical practitioner and any counsellor or therapist upon whom he attends;
b. Do all such things and sign all such documents as might be required so as to authorise any and all of the persons or school referred to in paragraph 11a above, of these orders so as to facilitate the mother receiving any and all such information (including written reports provided in the usual course by any such person) relating to the child’s progress, health, treatment or course of counselling or therapy as the case may be SAVE THAT nothing in this order shall be construed so as to require the father to authorise the provision of any information which, in the written professional opinion of any doctor, counsellor or therapist is contrary to the child’s best interests;
c. Notify the mother as soon as reasonably practicable of any significant injury or serious illness suffered by the child and, in any event, any injury or illness which requires specialist medical treatment or admission to hospital.
Publication
12.
Pursuant to s 121(9)(g) of the Act, the father or the Independent Children’s Lawyer is authorised to publish an account of these proceedings, namely these Orders and the Reasons for Judgment delivered herewith, to:
a. Professor Q;
b. Mr A;
c. The father’s former wife E Donaghey and adult daughter L Donaghey;
d. The mother’s sisters and brother;
e. The Manager, Child Dispute Services, of the Brisbane Registry of this Court or any family consultant nominated by him;
f. Any of the persons or school referred to in paragraph 11a of these Orders;
g. The Department of Communities (Child Safety), the police or any person or organisation of a similar type charged with responsibility for the investigation of complaints of child abuse;
h. Any supervisor or contact centre charged with the responsibility of supervising time pursuant to these Orders.
AND IT IS FURTHER ORDERED THAT
13.
The Independent Children’s Lawyer is discharged on a date three months from the date of these orders.
14.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
15.
Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
16.
Pursuant to s 65DA(2) and s 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 hereto and these particulars are included in these orders.
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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