Earles and Highsmith - [2016] FamCA 1012

FAMILY COURT OF AUSTRALIA

EARLES & HIGHSMITH

[2016] FamCA 1012

FAMILY LAW – CHILDREN – where competing applications for residence – where mother has belief that child sexually abused by the father – where allegations by mother of family violence – where child in settled circumstances with the father – where child at risk of ongoing psychological abuse by the mother – where risk to child’s relationship with the father – where consideration of the child’s best interests leads to conclusion that child should live with father – where mother’s time should be limited as recommended by the single expert and as proposed by the Independent Children’s Lawyer – where in the child’s best interests time with the mother to be supervised until the child is 14

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA, 61DA(2), 61DA(4), 65DAA, 65DAA(6)

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT:

Ms Earles

RESPONDENT:

Mr Highsmith

INDEPENDENT CHILDREN’S LAWYER:

Ms Smyth

FILE NUMBER:

PAC

3528

2008

DATE DELIVERED:

25 November 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

22, 23, 24, 25 and 26 August 2016 and 15 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Snelling

SOLICITOR FOR THE APPLICANT:

Phillip A Wilkins & Associates

COUNSEL FOR THE RESPONDENT:

Mr Blank

SOLICITOR FOR THE RESPONDENT:

Sarah Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Armstrong Legal

Orders

That the father have sole parental responsibility for the child, C born … 2007.
That the child live with the father.
That the child spend time with the mother supervised by a professional supervising agency for three hours on the first Saturday of each month at a venue considered appropriate by the supervision agency.
That the mother and father pay equally the cost of ongoing supervision.
That from 20 December 2017 upon the child turning 10 years of age the supervised time be increased to four hours and the mother be able to invite maternal relatives to attend such time including the maternal grandparents.
That from 20 December 2017 the supervision venue be as nominated by the mother on the proviso that the professional supervising agency consents to it being an appropriate venue for supervision in the event that such time is attended by a maternal relative or maternal relatives.
That the child have telephone time with the mother once each week and failing agreement each Wednesday between 6.00 pm and 7.00 pm with the father or his nominee to initiate the call for the child and such call may be on speakerphone and in the presence of the father.
That the mother be restrained from questioning the child about the child’s loyalties and wishes regarding time or about possible current or alleged past abuse or maltreatment of the child in the paternal home and the…

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 Earles and Highsmith

Details

AGLC: Earles and Highsmith [2016] FamCA 1012
Case: [2016] FamCA 1012
Decision Date: 25 November 2016

CaseChat Overview and Summary

This matter concerned an application by the father for sole parental responsibility for the child, C, and for the child to live with him. The mother sought orders for the child to spend time with her. The case was heard by Foster J.

The primary legal issues before the court were how to best ensure the child's safety and well-being, particularly in light of allegations of abuse and maltreatment, and how to facilitate a meaningful relationship between the child and both parents while prioritising the child's best interests. The court was required to determine the appropriate parenting arrangements, including the level of supervision for contact between the child and the mother, and the role of therapeutic intervention in managing the child's emotional needs and future contact arrangements.

Foster J's reasoning focused on the need for a structured and supervised approach to the mother's contact with the child, given the history of allegations. The court applied principles of the *Family Law Act 1975* (Cth), particularly concerning the best interests of the child. The orders reflect a carefully calibrated approach, commencing with supervised contact and gradually increasing the duration and potential for family involvement as the child matures, contingent on the child's wishes being communicated through a therapist. Significant emphasis was placed on preventing the child from being exposed to parental conflict or questioning about sensitive matters, with communication regarding the child's wishes to be managed through therapeutic channels.

The court made detailed orders regarding parental responsibility, living arrangements, supervised and unsupervised time, telephone contact, and communication protocols between the parents and with the child. These orders included provisions for ongoing therapeutic support for the child, the appointment of a therapist, and specific undertakings from maternal relatives involved in the child's life. The court also addressed practical matters such as school communication and medical emergencies, and extended the role of the Independent Children's Lawyer.

Orders

Orders of the court

That the father have sole parental responsibility for the child, C born … 2007.

That the child live with the father.

That the child spend time with the mother supervised by a professional supervising agency for three hours on the first Saturday of each month at a venue considered appropriate by the supervision agency.

That the mother and father pay equally the cost of ongoing supervision.

That from 20 December 2017 upon the child turning 10 years of age the supervised time be increased to four hours and the mother be able to invite maternal relatives to attend such time including the maternal grandparents.

That from 20 December 2017 the supervision venue be as nominated by the mother on the proviso that the professional supervising agency consents to it being an appropriate venue for supervision in the event that such time is attended by a maternal relative or maternal relatives.

That the child have telephone time with the mother once each week and failing agreement each Wednesday between 6.00 pm and 7.00 pm with the father or his nominee to initiate the call for the child and such call may be on speakerphone and in the presence of the father.

That the mother be restrained from questioning the child about the child’s loyalties and wishes regarding time or about possible current or alleged past abuse or maltreatment of the child in the paternal home and the mother use her best endeavours to prevent maternal relatives from so doing and that maternal relatives upon providing an undertaking as provided for in the following order be restrained from questioning the child about the child’s loyalties and wishes regarding time or about possible current or alleged past abuse or maltreatment of the child in the paternal home.

That prior to time commencing with any maternal relatives nominated by the mother such maternal relatives must provide an undertaking, no later than six months from the date of these orders, to the Independent Children’s Lawyer in a form approved by the Independent Children’s Lawyer that they understand the need for supervision and undertake to comply with the restraint provided for in the previous order.

10.

That the undertakings referred to in the previous order be filed by the Independent Children’s Lawyer with the Court as soon as practicable after being provided.

11.

That a therapist for the child be appointed as nominated by the single expert Dr K and that a copy of the single expert reports by Dr K dated 16 February 2012 and 3 March 2016 be released to the therapist by the independent children’s lawyer together with a copy of these orders and reasons for judgment and the father upon receiving the therapist nomination do all things necessary to obtain if necessary a mental health referral for the child from the child’s general practitioner and ensure that the child attends all appointments nominated by the therapist and that he complies with all reasonable recommendations of the therapist including referral of the child to any other health practitioner.

12.

That upon the child turning 14 years of age, the child’s time with the mother shall be in accordance with the child’s wishes as communicated to the mother and father by the appointed therapist and that such time be strictly adhered to by the mother and father and any wishes for varying such time be referred to the therapist for discussion with the child.

13.

That in order to implement the previous order the mother and father are restrained from engaging with the child directly about her wishes and choices and all communication regarding the child’s wishes and choices are to be communicated through the therapist.

14.

That prior to the commencement of time upon the child turning 14 years of age, the child shall meet with the therapist to discuss issues outlined in the single expert report by Dr K dated 3 March 2016 and, in particular, paragraph 346.11 therein.

15.

That the Independent Children’s Lawyer release the single expert’s report dated 3 March 2016 to Dr Y, the mother’s treating therapist.

16.

That the mother and father be restrained from making critical or derogatory remarks about the other in the presence or hearing of the child and use their best efforts to ensure that no other person denigrates the other or member of the other’s family to the child or within the child’s hearing.

17.

That the mother and father be restrained from referring to the child by any other name other than her current name.

18.

That the father shall do all things necessary to authorise any school that the child may attend from time to time to communicate with the mother about all matters relating to the child which the school usually advises parents such as school reports, newsletters and events at school and this order shall be sufficient authority for the mother to do so.

19.

That the mother shall be able to attend school events to which parents are normally invited if the father invites her in writing, such writing to include SMS or email communication.

20.

That both the mother and father shall advise the other as soon as practicable of any medical emergency involving the child including advising the name of any treating doctor, hospital or any prescription prescribed.

21.

That the mother and father shall authorise any treating doctor or hospital to communicate with the other in relation to any treatment or medication.

22.

That the father shall make the child available to the Independent Children’s Lawyer within seven days of these orders for the purpose of the Independent Children’s Lawyer explaining to the child the nature and effect and meaning of such orders.

23.

That for the purposes of these orders, the appointment of the Independent Children’s Lawyer be extended for a further six month period from the date of such orders.

24.

Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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