Eyles and Eyles - [2016] FCCA 1513

FEDERAL CIRCUIT COURT OF AUSTRALIA

EYLES & EYLES

[2016] FCCA 1513

Catchwords:
FAMILY LAW – Parenting – Child almost 3 – where two older children of the father from his previous relationships have alleged that the father sexually abused them – where the father denies sexually abusing these children but concedes that on the evidence the best he can hope for is supervised time with his youngest child – where the father proposes that the child spend time with him supervised by the paternal grandmother – where the paternal grandmother is willing to supervise but accepts the father’s denials and shows no empathy for the child – issue of whether supervision by the paternal grandmother will keep the child safe – issue of whether there is any benefit to the child in spending time with the father – order made for no time.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Cases cited:

Johnson & Page (2007) FLC 93-344
M & M (1988) FLC 91-979
Wardle & Wardle [2016] FamCAFC 77

Applicant:

MS EYLES

Respondent:

MR EYLES

File Number:

NCC 2997 of 2014

Judgment of:

Judge Terry

Hearing dates:

14 & 15 June 2016

Date of Last Submission:

15 June 2016

Delivered at:

Newcastle

Delivered on:

21 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Sharrock

Solicitors for the Applicant:

Geoff Garside Solicitor

Counsel for the Respondent:

Mr Murray

Solicitors for the Respondent:	Toronto Legal
Counsel for the Independent Children's Lawyer:	Mr Boyd
Solicitors for the Independent Children's Lawyer:	Legal Aid NSW

ORDERS

The mother shall have sole parental responsibility for the child X born (omitted) 2013.
The child shall live with the mother.
The child shall spend no time with and have no communication with the father.

IT IS NOTED that publication of this judgment under the pseudonym Eyles & Eyles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2997 of 2014

MS EYLES

Applicant

And

MR EYLES

Respondent

REASONS FOR JUDGMENT

Introduction

X is almost 3. Currently she lives with her mother and spends time with her father supervised at a contact centre.
The mother’s proposal for future parenting arrangements at the commencement of the hearing was that X should live with her and spend time with the father supervised by a person or persons deemed suitable by the court and at a time and frequency determined by the Court. The mother also sought an order for sole parental responsibility.
The father’s proposal was that the parties should have equal shared parental responsibility and that X should live with him and spend time with the mother on alternate weekends, for an overnight each alternate week and during school holidays.
The father was unable to adequately explain when in the witness box why he was asking for such a radical change and he refused to acknowledge that it might be very difficult for his daughter to be separated from her primary carer.
When pressed to consider his…

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 Eyles and Eyles

Details

AGLC: Eyles and Eyles [2016] FCCA 1513
Case: [2016] FCCA 1513
Decision Date: 21 June 2016

CaseChat Overview and Summary

In *Eyles and Eyles*, Judge Terry of the Family Court of Australia was required to determine the future living arrangements and parental responsibility for a child, X. The proceedings concerned the mother's application for sole parental responsibility and for X to live with her, with no time or communication ordered with the father.

The court was tasked with considering the likely effect of any changes in X's circumstances, including the impact of separation from either parent. A key issue was whether to make a "no time" order, which would permanently separate X from her father. The court also had to assess the capacity of each parent to provide for X's needs, including emotional and intellectual needs, and the potential long-term effects of a severed relationship with the father.

Judge Terry noted that X had spent very limited time with her father in the preceding twelve months. While acknowledging that X might adapt in the short term to a no time order, the judge expressed difficulty in predicting the long-term consequences, which could include regret and potential impacts on adult decision-making. The court considered expert evidence regarding "identity contact," with the family report writer expressing reservations about the quality of brief, infrequent contact and the potential for children to fantasise about the absent parent. The judge ultimately ordered that the mother have sole parental responsibility for X, that X live with the mother, and that X spend no time with and have no communication with the father.

Orders

Orders of the court

The mother shall have sole parental responsibility for the child X born (omitted) 2013.

The child shall live with the mother.

The child shall spend no time with and have no communication with the father.

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

I am required to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:i)either of his or her parents; or ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living. An option open to the court is to make a no time order which would permanently separate X from her father. X has spent very limited time with her father in the last twelve months and it is likely that in the short term she would take this change in her stride. The long term effects are more difficult to predict and could depend on what else X’s future holds. Sometimes a good stepfather fills the gap for a child. On the other hand X may deeply regret not having her father in her life and this may affect her adult decisions. I have had more than one case before me in which a person who did not have a relationship with their father as a child remained in an abusive relationship as an adult because they did not want their child to grow up without a father. The family report writer was asked about identity contact during cross-examination and said as follows:Look over the years I’ve seen a real swings and roundabouts with identity contact. When I first started many, many years ago identity contact was certainly the flavour of the month for good reason, but there were also services that would provide that. In the last 10 years or so, to my understanding, the services are too full… they can’t do that.I’ve always been a little bit in two minds about it. If a child’s not allowed to spend time with a parent and yet four times a year they’re plonked in front of that parent for an hour, I’m not sure there is any quality of relationship in that hour. And I guess the thing that you risk is having the child then start to fantasise about, you know: “mum seemed nice or dad seemed nice, I bet if I lived with them I’d get my own bedroom and a pool”. And you can run that sort of risk or there is an argument that the child is happily going on with life and then four times a year you bring that child back into stark reality of “well this is your other parent but no you’re not allowed to see them or talk to them.” And I must admit I err a bit on that side. I am required to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis. This is not a relevant consideration given the issue now in dispute. I am required to consider the capacity of: i)each of the child's parents; and ii)any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs. The mother lives in (omitted) with the maternal grandfather and step-grandfather and their daughters aged 18 and 20. The mother and X each have their own room.