Fielding and Mason

Case [2011] FMCAfam 1137


FEDERAL MAGISTRATES COURT OF AUSTRALIA

FIELDING & MASON [2011] FMCAfam 1137
FAMILY LAW – Parenting – mother’s allegations of sexual abuse – no unacceptable risk of abuse – mother coaching children – family violence perpetrated by father – mother and father drug and alcohol issues – where the least risk lies for the children – child’s attachment to mother disrupted.
Evidence Act 1995 (Cth), s.140
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64, 65DAA
A v A (1976) VR 298
B and B [Access] (1986) FLC 91-758
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Briginshaw v Briginshaw (1938) 60 CLR 336
Brown and Pedersen (1992) FLC ¶92-271
J v Lieschke (1987) 162 CLR 447
Leveque v Leveque (1983) 54 BCLR 164
M and M (1987) 11 FamLR 765
McKee v McKee (1951) AC 352
MRR v GR [2010] HCA 4
N and S and the Separate Representative (1996) FLC 92-655
Re G (a minor) (1987) 1 WLR 1461
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768
Reynolds v Reynolds (1973) 47 ALJR 499
S v S [1993] NZFLR 657
TF and JF and Children’s Representative [2005] FamCA 394
V and V [2004] FamCA 1081
W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892
WK v SR (1997) 22 FamLR 592
Applicant: MS FIELDING
Respondent: MR MASON
File Number: SYC 5298 of 2009
Judgment of: Altobelli FM
Hearing dates: 12-14 October 2011 & 17-18 November 2011
Date of Last Submission: 18 November 2011
Delivered at: Sydney
Delivered on: 16 December 2011

REPRESENTATION

Counsel for the Applicant: Ms Reynolds
Solicitors for the Applicant: Ilona Beutum Solicitor
Counsel for the Respondent: Mr Johnston, Mr Harper, Mr Barry
Solicitors for the Respondent: Marks Griffiths & Bova Solicitors
Counsel for the Independent Children’s Lawyer: Ms Boyle
Independent Children’s Lawyer: Hamish Cumming Family Lawyers

ORDERS

  1. That, as from no later than 4:00pm on 18 December 2011, the children [X] born [in] 2007 and [Y], born [in] 2008 (“the children”) shall live with the Father.

  2. That the parties shall have equal shared parental responsibility for the children and they shall, in the exercise of their joint parental responsibility, consult with each other in relation to the children’s health and education and should there be no agreement on any issue that pertains to the children’s health or education, the Father shall make the decision and shall advise the Mother of the decision made.

  3. That the Mother spend time with the children as follows:-

    (a)With [X] on one weekday each week as agreed between the parties and failing agreement each Wednesday between 10.00am and 4.00pm, with such time continuing until 20 January 2013;

    (b)With both children, one weekend day each week as agreed and failing agreement each Sunday between 10.00am and 4.00pm;

    (c)From the beginning of the Term 2 School Holidays in 2013, with both children each alternate weekend from 10.00am Saturday until 4.00pm Sunday;

    (d)From 10.00am until 4.00pm on 24 December 2011;

    (e)From 10.00am until 4.00pm on…

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AGLC
Fielding and Mason [2011] FMCAfam 1137
Case
[2011] FMCAfam 1137
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Fielding and Mason involved a dispute between the parents, [Father] and [Mother], regarding the care, control, and residence of their children, [X] and [Y]. The primary concern was the safety and well-being of the children, with allegations of sexual abuse against the Father and his father. The court was required to determine the best living arrangements for the children and the responsibilities of each parent in their upbringing.

The legal issues included the allocation of parental responsibility, the living arrangements for the children, and the need for each parent to engage in therapeutic activities to support their parenting capabilities and the children's welfare. The court had to balance the allegations of abuse against the Father with the importance of maintaining a relationship between the children and both parents. The court also needed to consider the children’s health, education, and the need for stability and continuity in their lives.

The court determined that the children should primarily live with the Father but also provided specific visitation arrangements for the Mother. Equal shared parental responsibility was assigned to both parents, with detailed guidelines for decision-making, consultation, and communication. The court mandated therapeutic interventions for both parents, aimed at addressing their individual issues and supporting their ability to care for the children. The orders also included specific provisions for contact times, changeover locations, and restrictions on discussing the proceedings and allegations with the children.

The final orders outlined specific living arrangements, visitation schedules, and responsibilities for both parents, ensuring that the children's welfare remained the paramount consideration. The court also included provisions for therapeutic support for both parents to address issues that could impact their parenting.

Orders

Orders of the court

1.

That, as from no later than 4:00pm on 18 December 2011, the children [X] born [in] 2007 and [Y], born [in] 2008 (“the children”) shall live with the Father.

2.

That the parties shall have equal shared parental responsibility for the children and they shall, in the exercise of their joint parental responsibility, consult with each other in relation to the children’s health and education and should there be no agreement on any issue that pertains to the children’s health or education, the Father shall make the decision and shall advise the Mother of the decision made.

3.

That the Mother spend time with the children as follows:-

(a) With [X] on one weekday each week as agreed between the parties and failing agreement each Wednesday between 10.00am and 4.00pm, with such time continuing until 20 January 2013;

(b) With both children, one weekend day each week as agreed and failing agreement each Sunday between 10.00am and 4.00pm;

(c) From the beginning of the Term 2 School Holidays in 2013, with both children each alternate weekend from 10.00am Saturday until 4.00pm Sunday;

(d) From 10.00am until 4.00pm on 24 December 2011;

(e) From 10.00am until 4.00pm on 25 December 2012;

(f) Commencing 2013, with the Mother from 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years and from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years;

(g) At such other times as agreed.

4.

That the Father shall live at the home of his parents.

5.

That the parent’s shall ensure the children continue at [G] Child Care Centre until the end of 2012.

6.

That unless otherwise agreed, changeover shall take place at McDonald’s at [suburb omitted].

7.

That each party be restrained from attending changeover with any other person.

8.

That the Father shall continue his therapeutic attendance on Ms M or other therapist as recommended by her for the purpose of maintaining his current sobriety and in order to assist him with the long term care of the children.

9.

That the Mother shall continue her therapeutic attendance on Ms E and in the event Ms E is unable to continue such therapy, with a therapist as nominated by the Independent Children’s Lawyer, for the purpose of assisting her relationship with [X] AND the mother shall facilitate [X]’s attendance at such therapy as recommended by the therapist provided that any appointment for [X]’s attendance are at times when [X] is otherwise in the Mother’s care.

10.

That each party keep the other informed of a current address and telephone contact number.

11.

That each party keep the other informed of any matter arising in relation to the children’s education and medical treatment.

12.

That each party inform the other before taking the children outside the Sydney Metropolitan area.

13.

Notwithstanding any other Order, the children shall spend time with the Mother from 10am until 4pm on Mother’s Day and from 10am until 4pm with the Father on Father’s day.

14.

That each party be restrained from:-

(a) Discussing the proceedings with the children;

(b) Discussing any allegations of sexual abuse by the father or the paternal grandfather with the children;

(c) Denigrating the other parent or any member of the other parent’s family in the presence or hearing of the children.

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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