Fitzwater and Fitzwater - [2018] FamCA 1013

FAMILY COURT OF AUSTRALIA

FITZWATER & FITZWATER

[2018] FamCA 1013

FAMILY LAW – CHILDREN – Magellan List – Final parenting orders – Where there are two children of the marriage aged six and two – Allegation of unacceptable risk of sexual abuse by the father – Where the children live with the mother and the father has spent only supervised time with the children since January 2017 – Where the mother alleges the daughter made statements on several occasions during the marriage and subsequently demonstrated to her that the father digitally penetrated her vagina – Where the mother asked the father to leave the former matrimonial home as a result of what the child told her – Where there have been allegations of family violence during the marriage and an interim intervention order made by consent of the father without admission of the allegations in the complaint – Where the child has not made any complaint about the conduct of the father to police, any professional or the family consultant – Where there are no allegations made that the father has acted inappropriately towards the male child of the parties who was aged eight months at separation – Where the father denies the allegations and seeks that the children live with him – Where the father maintains that the mother is malicious and has conspired with the maternal grandmother and maternal aunt to make false statements about what the child told them with the purpose of ending the marriage and obtaining a property settlement – Where the father maintains that the mother is paranoid with child sexual abuse because her work has some connection to child abuse – Where the Independent Children’s Lawyer submits there is not sufficient evidence to make a finding that the father is an unacceptable risk – Where the Independent Children’s Lawyer does not support the father’s application for change of residence – Where the mother has a genuine belief on reasonable grounds that the child is telling the truth – Finding that the father is an unacceptable risk – Order that the children live with the mother and spend supervised time with the father – Order that the mother have sole parental responsibility.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 65DAC
Evidence Act 1995 (Cth) ss 79, s 140
Family Law Rules 2004 (Cth) r 15.49

Donaghey & Donaghey [2011] FamCA 13
In the marriage of Hall (1979) FLC 90-713
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Maluka & Maluka [2011] FamCAFC 72
N & S and the Separate Representative (1996) FLC 92-655
Re Andrew (1996) 20 Fam LR 538
Slater & Light (2013) 48 Fam LR 573
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Ms Fitzwater

RESPONDENT:

Mr Fitzwater

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

11465

2016

DATE DELIVERED:

18 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

5,6,7,8,9,13,14,15,19,20,…

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 Fitzwater and Fitzwater

Details

AGLC: Fitzwater and Fitzwater [2018] FamCA 1013
Case: [2018] FamCA 1013
Decision Date: 18 October 2018

CaseChat Overview and Summary

In *Fitzwater and Fitzwater*, Thornton J of the Federal Circuit Court of Australia was required to determine parenting orders concerning two children, X and Y. The proceedings involved the mother and father of the children, with the court making orders regarding the children's living arrangements, parental responsibility, and the father's time with them.

The central legal issues before the court were how to best ensure the children's welfare and best interests, particularly in light of findings that the father posed an unacceptable risk of sexual abuse to child X. This necessitated careful consideration of the nature and extent of the father's contact with the children, the conditions under which such contact should occur, and the role of third-party supervisors.

Thornton J discharged all previous parenting orders, except for an Airport Watch List order. The court ordered that the mother have sole parental responsibility for the children and that they live with her. The father's time with the children was significantly restricted and made conditional upon supervision by specific individuals, namely the paternal cousin Ms B and the paternal grandmother Ms C Fitzwater. Crucially, these supervisors were required to sign enforceable undertakings to the court, detailing their understanding of the risks involved, their responsibilities, and the consequences of any breach, including the potential for contempt of court. The court also made orders regarding communication between the father and children, the father's entitlement to school reports, holiday arrangements, and changeover procedures.

Orders

Orders of the court

IT IS ORDERED THAT

With the exception of the Airport Watch List order made by Judge McNab in the Federal Circuit Court on 23 November 2016, all previous parenting orders are discharged.

The mother have sole parental responsibility for the child X born … 2012 and the child Y born … 2016 (collectively “the children”) and keep the father advised of all major long term decisions she has made for each of the children.

The children live with the mother.

The father spend time and communicate with the children as follows:

(a) Each Thursday at the father’s election from 4.00 pm to 6.00 pm with such time to be supervised by Family Contact Service at the father’s expense at locations agreed between the parents in writing;

(b) Each alternate weekend on Saturday from 10.00 am to 6.00 pm and on Sunday from 10.00 am to 4.00 pm;

(d) On Christmas Day from 9.30 am to 12.00 noon;

(e) On Father’s Day from 10.00 am to 4.00 pm;

(f) With such time as set out in Order 4 (b) to (e) to be supervised by one of the following supervisors:

(i) the paternal cousin Ms B;

(ii) the paternal grandmother Ms C Fitzwater; or

(iii) any other suitable person agreed in writing by the parents;

(g) Such further and other times as may be agreed in writing between the parents.

Order 4 (b) to (e) of these Orders is conditional upon Ms C Fitzwater and Ms B signing an enforceable undertaking to the Court, the original of which will be filed with the court and placed on the court file, with copies to be provided by the father to the mother (or her solicitor) and the Independent Children’s Lawyer setting out that:

(a) They have agreed to supervise the time between the father and the children;

(b) They understand the nature of the undertaking and the seriousness of the role of the supervisor;

(d) They are to be present at all times during each spend time period of which they are to be supervising;

(e) They are to have both or either of the children within their hearing and sight when they are in the presence of the father;

(f) They are to cease contact between the children and the father if the father does any act or says anything to the children or either of them which exposes the children or either of them to emotional, physical and or psychological harm;

(g) Upon ceasing the spend time arrangement immediately contact the mother to arrange for the immediate return of the children to her;

(h) Without admitting the necessity for same not consume alcohol during any spend time with period they are supervising;

(i) They understand the nature of the undertaking and the seriousness of the role of the supervisor.

The undertaking referred to in Order 5 be in the terms required by this order and drawn by the Independent Children’s Lawyer to the effect that the supervisor has been given legal advice as to the terms of the undertaking and specifically that any breach by them may be viewed as a contempt of court punishable by imprisonment.

The children are to communicate with the father by telephone/FaceTime has agreed between the parties in writing and failing agreement each Sunday of the weekend the children do not spend with the father between 4 pm and 4:30 pm.

The father is entitled to receive a copy of the children’s school reports and school photographs of the children directly from the children’s school at his own expense.

In the event that the mother proposes to take the children on a holiday she provide no less than two weeks’ notice in writing to the father and the father’s supervised time shall be suspended for the duration of the holiday period.

10.

Changeovers pursuant to Order 4 (b) herein shall take place at McDonald’s Family Restaurant at Suburb N (or such other venue as may be agreed between the parents) with the supervisor implementing the changeover.

11.

The Independent Children’s Lawyer confirm with the paternal grandmother her obligations and responsibilities for supervising the children.

12.

The Independent Children’s Lawyer is discharged upon the filing of the undertakings.

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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