GALDES & HOLDING - [2013] FamCA 519

FAMILY COURT OF AUSTRALIA

GALDES & HOLDING

[2013] FamCA 519

FAMILY LAW – CHILDREN – Best interests of the child - Allegations of sexual abuse of the child by the father – Whether the evidence supports a finding of “unacceptable risk” – What time the father should spend with the child in the event of no finding of “unacceptable risk” – Where the father has only spent limited supervised time with the child recently – Whether, if no finding of “unacceptable risk is made, the father’s time should progress to unsupervised time and/or overnight time – Where there are practical difficulties in respect of the father’s time due to geographical difficulties - Whether the parties should be conferred with equal shared parental responsibility – Where the parties have a lack of communication – Where the mother has a firmly held belief that sexual abuse has occurred – Where the mother seeks sole parental responsibility

Briginshaw v Briginshaw (1938) 60 CLR 336
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
KN and Child Representative & NN and JN (2006) 35 Fam LR 518; [2006] FamCA 611
M v M (1998) 166 CLR 69
Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520
Rice & Asplund (1979) FLC 90-725

Family Law Act 1975 (Cth)

APPLICANT:

Mr Galdes

RESPONDENT:

Ms Holding

INDEPENDENT CHILDREN’S LAWYER:

Ms Ryan

FILE NUMBER:

PAC

2638

2011

DATE DELIVERED:

12 April 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

8, 9 and 10 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Friedlander

SOLICITOR FOR THE APPLICANT:

Gonzalez & Co

COUNSEL FOR THE RESPONDENT:

Ms Paraska

SOLICITOR FOR THE RESPONDENT:

Mr Leung
Mahony Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ryan

Legal Aid NSW, Parramatta Family Law

Orders

That I discharge all existing parenting Orders in respect of the child B born … 2009.
That the parties shall sign all documents and do all things necessary to have the father registered upon the child’s birth certificate as her father.
That the mother shall have sole parental responsibility for the child.
That, notwithstanding the order for sole parental responsibility, the mother shall advise the father upon her making decisions affecting the long term care and welfare of the child, including, but not limited to, decisions of education, religious upbringing and the child’s health.
That the child live with the mother.
That until 6 July 2013, the father shall spend time with the child at the E Town Children’s Contact Centre in a supervised situation for a period of two (2) hours, or such time that can be afforded by the centre but not exceeding three (3) hours on each alternate weekend, or on such a day or days as can be allocated by the centre.
That the paternal grandmother Ms C and the father’s partner Ms D shall be permitted to attend the visits at the centre provided that does…

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

Case: [2013] FamCA 519
Decision Date: 12 April 2013

CaseChat Overview and Summary

In the matter of GALDES & HOLDING, Collier J of the Federal Circuit Court of Australia considered parenting orders concerning a child born in 2009. The dispute involved the arrangements for the child's care and contact with her parents.

The court was required to determine the specific parenting orders that would best serve the child's welfare and best interests. This included establishing parental responsibility, the child's living arrangements, and the nature and extent of the father's time with the child, including supervised contact and progressively increasing unsupervised time. The court also had to address communication protocols between the parents, restrictions on denigration, and the exchange of information regarding the child's health and education.

Collier J discharged all existing parenting orders and made new orders. The mother was granted sole parental responsibility, with the child to live with her. The father was to be registered on the child's birth certificate. The court detailed a phased approach to the father's time with the child, commencing with supervised contact and gradually transitioning to unsupervised time, including specific arrangements for school holidays and weekends. The orders also included provisions for the father to be informed of decisions affecting the child's long-term care, education, and health, and for each parent to obtain information directly from the child's educational and health providers. Injunctions were made restraining each parent from denigrating the other in the child's presence and restraining the father from approaching within 500 metres of the mother's residence. All outstanding applications and cross-applications were dismissed.

Orders

Orders of the court

That I discharge all existing parenting Orders in respect of the child B born … 2009.

That the parties shall sign all documents and do all things necessary to have the father registered upon the child’s birth certificate as her father.

That the mother shall have sole parental responsibility for the child.

That, notwithstanding the order for sole parental responsibility, the mother shall advise the father upon her making decisions affecting the long term care and welfare of the child, including, but not limited to, decisions of education, religious upbringing and the child’s health.

That the child live with the mother.

That until 6 July 2013, the father shall spend time with the child at the E Town Children’s Contact Centre in a supervised situation for a period of two (2) hours, or such time that can be afforded by the centre but not exceeding three (3) hours on each alternate weekend, or on such a day or days as can be allocated by the centre.

That the paternal grandmother Ms C and the father’s partner Ms D shall be permitted to attend the visits at the centre provided that does not offend against any rule or requirement of the centre.

That from 6 July 2013 onwards and until 31 August 2013, the father shall spend time with the child from 10.00 am until 12.00 noon each alternate Sunday, commencing on 7 July 2013. Such visits shall take place in the E Town area.

That from Sunday 1 September 2013 until 9 October 2013, the father shall spend time with the child from 10.00 am to 2.00 pm each alternate Sunday. Such visits shall take place in the E Town area.

10.

Thereafter and commencing on 27 October 2013, the father shall spend time with the child from 9.00 am until 5.00 pm each alternate Sunday. Such visits shall take place in the E Town area.

11.

That commencing in 2014, in the holidays falling between first and second, second and third and third and fourth terms in each year the father shall spend time with the child for four (4) consecutive days commencing from 9.00 am until 5.00 pm each day from the middle Saturday of each school holiday period.

12.

That the father’s holiday time between first and second and third and fourth term shall be spent at E Town, and the holiday time between second and third terms shall be spent in Sydney.

13.

That commencing in 2014, during the January/December Christmas holidays, the father shall spend time with the child on two (2) separate periods of three (3) consecutive days each from 9.00 am until 5.00 pm each day. Such periods to commence on the second and fifth Saturdays falling within that period. Such periods of time shall be spent in Sydney area.

14.

That the father shall spend time with the child at any other time as may be agreed between the parties and evidenced in writing.

15.

That to facilitate orders for the father to spend time with the child in E Town, the father shall collect the child from the E Town Children’s Contact Centre at the commencement of such time and shall return the child to the centre at the conclusion of such time.

16.

That to facilitate orders for the father to spend time with the child in Sydney, the father shall collect the child from the F Contact Service at the commencement of such periods and shall return the child to that centre at the conclusion of such periods.

17.

That the father’s time shall be suspended on Mother’s Day in each year and the father shall spend time with the child on the Sunday immediately following Mother’s Day in each year from 9.00 am until 5.00 pm commencing in 2014.

18.

That in the event that the child is not for any reason able or available to spend time with the father on any of the occasions specified due to illness or for any other appropriate cause, the mother shall provide the father firstly with notice that such visit will not occur, and secondly will provide to the father within seven (7) days of the date upon which time should have occurred, a medical certificate setting out the medical reason for the child not attending. Should the reason be other than for a medical reason then the mother shall specify that reason to the father. In the event that time does not occur as hereinbefore contemplated, the parties shall arrange for the father to spend a period of time equivalent to the time lost within three (3) weeks from the date upon which time should have occurred.

19.

That the parties shall within fourteen (14) days of the making of these Orders, contact the F Contact Service and shall thereafter do all things and execute all documents necessary to participate in an intake assessment with the centre for the purpose of the centre providing changeovers in a supervised situation when time is to occur in Sydney.

20.

That each party is restrained from denigrating the other parent in the hearing or presence of the child.

21.

That each party is restrained from causing, permitting or allowing any other person to do so, that is, to denigrate the other parent in the hearing or presence of the child.

22.

That each party shall forthwith advise the other of their residential address and mobile telephone contact number. In the case of the mother, the mother shall not move from her presence address as notified without giving twenty-eight (28) days notice to the father of her intention to move, and specifying with some precision, the address, and if not that the area, to which she proposes to move. The father shall keep his address notified and current and in the event of any change shall notify the mother of that change within forty-eight (48) hours of it occurring.

23.

The father is by way of injunction restrained from approaching within 500 metres of the mother’s residence from time to time.

24.

That each parent shall be entitled to obtain information directly from the child’s day care, preschool or school in relation to her educational progress, including, but not limited to, the obtaining of school reports and school photographs.

25.

That each party shall be at liberty to attend any day care, preschool or school event involving the child to which parents are ordinarily invited. On such occasion, the parties shall, should they need to deal with each other, deal with each other in a civilised and appropriate fashion.

26.

That a copy of these orders may be produced to child’s day care, preschool or school to establish the entitlements of each of the parties.

27.

That in event the child suffers from a serious illness, injury or is hospitalised, the parent who is caring for the child at the time of the event shall notify the other as soon as is reasonably practical.

28.

That each parent shall be at liberty to obtain information in relation to the child’s health in a general sense or arising from the notification of any serious illness or injury. That information may be obtained from any treating doctor or specialist at any time.

29.

That a copy of these orders may be produced to such doctor or specialist to establish the entitlement of each party pursuant to these orders.

30.

That if the mother enrols or proposes to enrol the child in counselling, the father is to be informed of such situation. The father shall thereafter be entitled to contact the counsellor or therapist. Further, should the counsellor or therapist consider it appropriate, the father shall be entitled to participate in such counselling or therapy.

31.

That I otherwise note that no application has been made by the Independent Children’s Lawyer for costs against either party.

32.

That I dismiss all outstanding applications and cross-applications.

33.

That I remove all issues from the Active Pending Cases List.

34.

That all material produced on subpoena be returned.

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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