FLEMMING & ORBAN - [2019] FCCA 306

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLEMMING & ORBAN

[2019] FCCA 306

Catchwords:
FAMILY LAW – Final parenting hearing – unacceptable risk – father convicted of sexual offences against mother when she was under age – allegations of sexual abuse made by other female relatives – whether or not the father should have unsupervised time with 13 year old daughter and 14 year old son – if supervised whether or not it should continue to be professional supervised or supervised by his wife – Department of Health and Human Services intervenes last day of trial.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), 60CA, 60CC(2), 60CC(2A), 60CC(3), 69ZW

Cases cited:

Waterford & Waterford [2013] FamCA 33

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

M &M [1988] HCA 68

Betros & Betros [2017] FamCAFC 90

Applicant:

MS FLEMMING

Respondent:

MR ORBAN

File Number:

MLC 9339 of 2010

Judgment of:

Judge Harland

Hearing dates:

24, 25 & 26 September & 26 October 2018

Date of Last Submission:

7 December 2018

Delivered at:

Melbourne

Delivered on:

15 February 2019

REPRESENTATION

Counsel for the Applicant:

Ms Bonney

Solicitors for the Applicant:

Melville Orton & Lewis

Counsel for the Respondent:

Mr Strong

Solicitors for the Respondent:

Victoria Legal Aid

Counsel for the Independent Children's Lawyer:

Ms Goldsworthy

Solicitors for the Independent Children's Lawyer:

Counsel for the Department of Health and Human Services (fourth day of hearing only):

Perisic Lawyers

Mr Berkozitch

ORDERS BY CONSENT

That all previous parenting Orders be discharged.
That the Mother have sole parental responsibility for the children of the relationship, [X] born … 2004 and [Y] born … 2006 (“the children”).
That the children live with the Mother.
That each party keep the other advised of their contact telephone number and an active email address and notify the other within 24 hours of any change to same.
That the Mother notify the Father in the event of any serious illness or injury to the children and authorise any treating medical practitioner including specialists and counsellors to provide information to the Father including discussing the children’s treatment with the Father save for such information which falls within s.32C of the Evidence Act or is deemed confidential by the operation of law.
That the Father be at liberty to obtain copies of all school reports, newsletters and photograph Order forms and be at liberty to speak to the children’s teachers in relation to the progress of the children.
That the Mother be restrained from changing either of or both children’s names unless agreed in writing by the father.

ORDERS BY THE COURT

That the children spend time with the father on such days and times as can be accommodated by the Town A Children’s Contact Centre.
That the children spend such other professional supervised time with the father as the parties may agree in writing and the father shall be responsible for the costs of such supervision.

IT IS NOTED that publication of this judgment under…

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.

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Details

AGLC: FLEMMING & ORBAN [2019] FCCA 306
Case: [2019] FCCA 306
Decision Date: 15 February 2019

CaseChat Overview and Summary

This matter concerned a final parenting hearing before Harland J in the Family Court of Australia. The dispute involved allegations of an unacceptable risk of harm to the parties' two children, a 13-year-old daughter and a 14-year-old son, arising from the father's prior criminal convictions for sexual offences against the mother when she was under age, as well as allegations of sexual abuse made by other female relatives. The central question before the court was whether the father should be permitted unsupervised time with the children, and if supervised time was appropriate, whether that supervision should be by a professional or by his wife. The Department of Health and Human Services intervened on the final day of the trial.

The court was required to determine whether the father posed an unacceptable risk of harm to the children, specifically in relation to sexual abuse, given his history and the nature of the allegations. This involved assessing the credibility of the evidence presented, including the father's convictions and the allegations made by other family members. The court also had to consider the suitability of different forms of supervision, if any, and the potential risks associated with each.

Harland J applied the paramountcy principle, requiring the best interests of the children to be the primary consideration. The court carefully weighed the evidence of the father's past conduct and the potential for future harm against the children's need for a relationship with their father. The judge considered the impact of the father's convictions and the broader allegations on the children's safety and well-being. The court determined that the risk of harm was unacceptable and that unsupervised time with the father was not in the children's best interests. The judge also considered the appropriateness of supervision by the father's wife, noting the potential for her to be influenced or coerced.

The court ordered that the father should have no unsupervised time with the children. His time with the children was to be supervised by a professional, and the court made specific directions regarding the nature and frequency of this supervised contact.

Orders