FAMILY COURT OF AUSTRALIA
| EICHER & ROMAN | [2010] FamCA 777 |
| FAMILY LAW – CHILDREN – Whether there is an unacceptable risk of sexual abuse arising from allegations against three boys – the reliability of the techniques used in interviewing the boys – where the child may have developed a false belief of being the victim of sexual abuse – what arrangements are in the child’s best interests – whether equal shared parental responsibility is in the child’s best interests |
| Family Law Act 1975 (Cth) |
| M & M (1988) FLC 91-979 Murphy & Murphy [2007] FamCA 795 |
| APPLICANT: | Mr Eicher |
| RESPONDENT: | Ms Roman |
| INDEPENDENT CHILDREN'S LAWYER: | Purcell Taylor |
| INTERVENOR: | Department of Communities (Child Safety Services) |
| FILE NUMBER: | CSC | 238 | of | 2007 |
| DATE DELIVERED: | 7 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 27 July 2010 - 3 August 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wilson |
| SOLICITOR FOR THE APPLICANT: | O’Reilly Stevens Bovey Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Benson |
| SOLICITOR FOR THE RESPONDENT: | AMR Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Mayes |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Purcell Taylor |
| COUNSEL FOR THE INTERVENOR: | Mr Pennell |
| SOLICITORS FOR THE INTERVENOR: | Department of Communities (Child Safety Services) |
Orders
All previous Orders made by the Family Court of Australia and the Federal Magistrates Court of Australia be discharged.
The child M born … June 2003 (“the child”) live with the mother at all times other than those times he spends with his father.
The mother have sole parental responsibility for the child, subject to orders 4, 5, 6, 19 and 20 below.
Day to day decisions regarding the child are the responsibility of the parent who has care of the child at that time.
The mother give notice to the father in writing or by email of any major decision she intends to make about the child’s education or medical care at least 21 days prior to making such decisions, and before making the decision, consider any view expressed by the father in writing or by email received within 21 days of the notice given by the mother to the father.
The mother shall keep the father informed of the child’s circumstances by:
6.1.Informing the father of any medical or health matter concerning the child;
6.2.Notifying the father of the name of the child’s school, medical practitioner and dentist if and when they change;
6.3.Authorising the child’s school to provide the father with:
6.3.1.A copy of the child’s school reports and any other written material relating to the child’s progress or participation at school;
6.3.2.Order forms for a school photo of the child each year.
Both parties to inform the other party of any change to their current residential address or contact telephone number within 48 hours of any such change.
The child spend time with the father increasing on a graduated basis as follows:
8.1.On the weekend immediately after these Orders are made from 9am to 5pm on Saturday;
8.2.On the next alternative weekend…
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- AGLC
- Eicher and Roman [2007] FamCA 777
- Case
- [2010] FamCA 777
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary residence of the child, the allocation of parental responsibility, and the specific times the child would spend with each parent, including during school terms, holidays, and on special days. Further issues included the process for day-to-day and major decision-making, communication protocols between parents, and provisions for travel and relocation. The court also addressed the discharge of previous orders and the appointment of an Independent Children's Lawyer.
Watts J ordered that the child, M, live with the mother at all times other than when M spends time with the father. The mother was granted sole parental responsibility, with specific provisions for day-to-day decisions to be made by the parent with whom the child is residing. Major decisions regarding education and medical care require the mother to provide 21 days' written notice to the father, who must be given an opportunity to express his views. The court detailed a graduated schedule for the child to spend time with the father, increasing over time, and established a pattern for alternate weekends and half of school holidays. Provisions were also made for special days, communication between parents and the child, and restrictions on relocation without consent or further court order. All previous orders were discharged, and the Independent Children's Lawyer was discharged.
Orders
Orders of the court
1.
All previous Orders made by the Family Court of Australia and the Federal Magistrates Court of Australia be discharged.
2.
The child M born … June 2003 (“the child”) live with the mother at all times other than those times he spends with his father.
3.
The mother have sole parental responsibility for the child, subject to orders 4, 5, 6, 19 and 20 below.
4.
Day to day decisions regarding the child are the responsibility of the parent who has care of the child at that time.
5.
The mother give notice to the father in writing or by email of any major decision she intends to make about the child’s education or medical care at least 21 days prior to making such decisions, and before making the decision, consider any view expressed by the father in writing or by email received within 21 days of the notice given by the mother to the father.
6.
The mother shall keep the father informed of the child’s circumstances by:
6.1. Informing the father of any medical or health matter concerning the child;
6.2. Notifying the father of the name of the child’s school, medical practitioner and dentist if and when they change;
6.3. Authorising the child’s school to provide the father with:
6.3.1. A copy of the child’s school reports and any other written material relating to the child’s progress or participation at school;
6.3.2. Order forms for a school photo of the child each year.
7.
Both parties to inform the other party of any change to their current residential address or contact telephone number within 48 hours of any such change.
8.
The child spend time with the father increasing on a graduated basis as follows:
8.1. On the weekend immediately after these Orders are made from 9am to 5pm on Saturday;
8.2. On the next alternative weekend from after school Friday (or 3pm if not during school term) until 5pm on Saturday;
8.3. On the next alternative week-end from after school Friday (or 3pm if not during school term) until 5pm Sunday;
8.4. On the next alternative week-end from after school Friday (or 3pm if not during school term) until Monday morning before school (or 9am if not during school term).
9.
Thereafter, the child is to spend time with the father as follows:
9.1. During school term, every alternate weekend from after school Friday until Tuesday morning before school; and
9.2. Half the school holidays with the father to have the first half of the school holidays in odd numbered years and the second half of the school holidays in even numbered years.
9.3. For the purpose of order 9.2, the school holidays will commence on the cessation of the child’s attendance at school at the end of school term and shall conclude at the commencement of the child’s attendance at school at the beginning of the next school term;
9.4. Any other time the parties mutually agree in writing.
10.
Notwithstanding orders 8 and 9 above, the child is to spend time with each parent on special days as follows:
10.1. From 12pm Christmas Eve to 12pm Christmas Day with the mother in odd numbered years and with the father in even numbered years
10.2. On the child’s birthday, with the parent the child is not living with from 9am to 1pm (if on a weekend) or after school to 6pm (if on a school day);
10.3. With the mother on the mother’s birthday from 9am to 1pm (if on a weekend) or after school to 5pm (if on a school day);
10.4. With the father on the father’s birthday from 9am to 1pm (if on a weekend) or after school to 5pm (if on a school day);
10.5. With the mother on the Mother’s Day from 9am to 5pm;
10.6. With the father on the Father’s Day from 9am to 5pm.
11.
Unless otherwise agreed in writing between the parties, handovers for the child are to occur at the child’s school during school term and at McDonald’s at E during school holidays.
12.
If either parent wishes to take the child out of the Cairns/Tableland area for a period longer than forty-eight hours, that parent is to notify the other parent in writing and provide a copy of the itinerary and contact details while the child is away, at least forty-eight hours prior to the trip.
13.
The mother to hold the child’s passport.
14.
Either parent is at liberty to travel with the child overseas during their time with the child on conditions that:
14.1. Any travel does not interfere with the other parent’s time with the child;
14.2. The travelling parent provides to the other parent, notice of their intended travel at least 28 days prior to such travel;
14.3. The travelling parent provides to the other a complete itinerary of the child’s travel plans at least 14 days prior to the travel; and
14.4. The travelling parent arranges for the other parent to have reasonable email and / or telephone communication with the child during such travel.
15.
The child to have telephone communication with the parent with whom they are not living between 5:00pm and 6:00pm on Monday night. The parent with whom the child is living is to facilitate the child ringing the other parent on this occasion and at any other time requested by the child
16.
Neither parent denigrate or allow any other person to denigrate, the other parent or members of the other parent’s family in front of the child.
17.
The mother to provide to the father all documents that she requires him to sign for the purposes of establishing to the Child Support Agency that he is the father of the child, and the father to promptly sign and return such documentation to the mother for lodgement at her convenience and expense.
18.
The father to provide to the mother, all documents required to amend the child’s Birth Certificate to register the father’s name as the child’s father and the mother to promptly sign such documentation and return it to the father for lodgement at his convenience and expense.
19.
Both the mother and father do all other things and sign all necessary documents to change the child’s name to M EICHER ROMAN.
20.
The mother is not permitted to relocate any distance from the father’s current residence so that the orders that the child spend time with his father become impracticable unless the father gives his written consent or there is a further court order.
21.
As soon as is practical after the date of these orders, the Director of Client Dispute Services is to arrange for a family consultant to explain to the child his living arrangements, and explain to M and T the effect of my findings consistent with paragraph 249 and the mother ensure that M and T attend any interview that is scheduled for that purpose.
22.
The order appointing the Independent Children’s Lawyer be discharged.
23.
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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