DUSTIN & SEVERSON - [2019] FCCA 2904

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUSTIN & SEVERSON

[2019] FCCA 2904

Catchwords:
FAMILY LAW – Parenting – allegations of sexual abuse/impropriety – unacceptable risk considered – parenting capacity.

Legislation:

Family Law Act 1975 (Cth), ss.61DA, 60B, 60CC (2),(3)
Evidence Act 1995 (Cth), s.140

Cases cited:

Re F: Litigant in Person Guidelines (2001) 161 FLR 189
Longford and Byrne & Anor [2017] FCCA 762
M & M [1998] HCA 68
Briginshaw v Briginshaw [1938] HCA 34
Napier v Hepburn (2006) FLC 93-303
PST & CPR [2006] FMCfam36
Johns & Jasapas [2016] FamCA471
N & S and the Separate Representative (1996) FLC 92-655

Applicant:

MS DUSTIN

Respondent:

MR SEVERSON

File Number:

LNC 245 of 2016

Judgment of:

Judge McGuire

Hearing dates:

6 & 28 August 2019 & 5 September 2019

Date of Last Submission:

5 September 2019

Delivered at:

Launceston

Delivered on:

22 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr M Verney

Solicitors for the Applicant:

Rae & Partners (Devonport)

The Respondent:

Appeared in person

Counsel for the Independent Children's Lawyer:

Mr D. Lewis

Solicitors for the Independent Children's Lawyer:

David Lewis

ORDERS

That all previous parenting Orders for the children X born … 2011, Y born … 2013 and Z born … 2014 (“the children”) be discharged.
That the mother, Ms Dustin, have sole parental responsibility for the children provided that the mother keep the father prudently advised of all important issues in respect of the children's medical and education matters.
These orders specifically permit the father to have access to the children's medical practitioners and to their school Principals and teachers and to be provided with all information normally afforded parents by those facilities.
That the children live with the mother.
That the children, Y and Z spend time with the father as follows: –
(a)each second weekend from Friday at 5.00 p.m. until Sunday at 5.00 p.m. commencing the first weekend after the delivering of these orders and fortnightly thereafter;
(b)For one half of each Tasmanian gazetted term school holiday from the first Friday at 5.00 p.m. until the second Saturday at 12.00 noon;
(c)on a week-about basis during the Tasmanian summer school holidays commencing on the first Friday of such holidays in 2019 and in each alternate year thereafter and on the second Friday in 2020 and in each alternate year thereafter;
(d)that during all school holidays the weekend time for the children with the father be suspended;
(e)such other times or variations of the above as agreed between the parties from time to time in writing;
That the child X spend time with the father as agreed between the parents in writing but with a direction that the Independent Children's Lawyer advise X that she is invited to attend for time with the father in accordance with the time for Y and Z set out above.
That the mother be and is hereby restrained from permitting or arranging any counselling for the child X without the express written consent of the father and including any continuing…

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 DUSTIN & SEVERSON

Details

AGLC: DUSTIN & SEVERSON [2019] FCCA 2904
Case: [2019] FCCA 2904
Decision Date: 22 October 2019

CaseChat Overview and Summary

In the matter of *Dustin & Severson*, Judge McGuire of the Family Court of Australia considered a dispute between the mother, Ms Dustin, and the father, Mr Severson, concerning the parenting arrangements for their three children. The proceedings involved allegations of sexual abuse and impropriety, requiring the court to assess the risk to the children and the parenting capacity of each party.

The central legal issues before the court were whether the existing parenting orders should be discharged, and if so, what new parenting arrangements would be in the best interests of the children. This included determining the allocation of parental responsibility, the children's living arrangements, and the nature and extent of the time the children would spend with each parent, particularly in light of the serious allegations raised.

Judge McGuire discharged all previous parenting orders. The court ordered that the mother have sole parental responsibility, with the father to be kept prudently advised of important medical and educational matters, and to retain access to the children's medical practitioners and school personnel. The children were ordered to live with the mother. Specific time arrangements were made for the children Y and Z to spend time with the father, including fortnightly weekends, half of each school holiday period, and alternating summer school holidays. The child X was to spend time with the father as agreed by the parents in writing, with a direction that the Independent Children's Lawyer advise X of her invitation to spend time with the father according to the arrangements for Y and Z. The court also made orders restraining the mother from arranging counselling for X without the father's consent, and both parents from inflicting corporal punishment, denigrating the other parent, or discussing the proceedings with the children.

Orders

Orders of the court

That all previous parenting Orders for the children X born … 2011, Y born … 2013 and Z born … 2014 (“the children”) be discharged.

That the mother, Ms Dustin, have sole parental responsibility for the children provided that the mother keep the father prudently advised of all important issues in respect of the children's medical and education matters.

These orders specifically permit the father to have access to the children's medical practitioners and to their school Principals and teachers and to be provided with all information normally afforded parents by those facilities.

That the children live with the mother.

That the children, Y and Z spend time with the father as follows: –

(a) each second weekend from Friday at 5.00 p.m. until Sunday at 5.00 p.m. commencing the first weekend after the delivering of these orders and fortnightly thereafter;

(b) For one half of each Tasmanian gazetted term school holiday from the first Friday at 5.00 p.m. until the second Saturday at 12.00 noon;

(c) on a week-about basis during the Tasmanian summer school holidays commencing on the first Friday of such holidays in 2019 and in each alternate year thereafter and on the second Friday in 2020 and in each alternate year thereafter;

(d) that during all school holidays the weekend time for the children with the father be suspended;

(e) such other times or variations of the above as agreed between the parties from time to time in writing;

That the child X spend time with the father as agreed between the parents in writing but with a direction that the Independent Children's Lawyer advise X that she is invited to attend for time with the father in accordance with the time for Y and Z set out above.

That the mother be and is hereby restrained from permitting or arranging any counselling for the child X without the express written consent of the father and including any continuing counselling with Counsellors, Launceston.

That each of the parents be and is hereby restrained from inflicting or permitting any other person to inflict corporal punishment on the children or any of them.

That each of the parents be and is hereby restrained from denigrating or abusing the other parent to or in the presence of the children or any of them.

10.

That each of the parents be and is hereby restrained from discussing any aspect of these proceedings or the contents of any documents filed or prepared for these proceedings with the children or any of them except for the purpose of explaining the children's living and time-with arrangements with the said children.

AND THE COURT NOTES:

11.

That pursuant to S65DA(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 are set out in Annexure “A” 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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