FAMILY COURT OF AUSTRALIA
| GALLOWAY & STEELE | [2011] FamCA 550 |
| FAMILY LAW - CHILDREN – Child related proceedings – Whether child at risk in the care of either parent – Allegations initially made by the mother that the child was being sexually abused by the father - Parenting Orders – unacceptable risk – sexual abuse – child abuse – oppositional defiant disorder |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Galloway |
| RESPONDENT: | Ms Steele |
| INDEPENDENT CHILDREN’S LAWYER: | Reid Family Lawyers |
| FILE NUMBER: | SYC | 6615 | of | 2007 |
| DATE DELIVERED: | 8 July 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 1, 2, 3 and 4 February 2011, 31 March 2011, and 1 and 8 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hausman |
| SOLICITOR FOR THE APPLICANT: | Slade Manwaring Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Hamish Cumming Family Lawyers |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Reid |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Reid Family Lawyers |
Orders
The father and the mother have equal shared parental responsibility for the making of major long-term decisions concerning the child, J (“the child”), born on … February 2007. The parent proposing the making of such a decision is to inform the other parent of his or her proposal, and the other parent is then, within seven days, to inform the proposing parent as to whether he or she agrees to the proposal. In the event that the other parent does not agree to the proposal, he or she is also, within the seven day period, to provide to the proposing parent reasons for the disagreement and any alternative proposal. In the event of continuing disagreement, the father and the mother are, within a further fourteen days, to submit their disagreement to mediation by a mediator, who is chosen by the other parent from a panel of three mediators chosen by the proposing parent.
The child live with the father.
Commencing one month from the date of these Orders and for a period of twelve months, the child spend time with the mother, unless otherwise agreed between the father and the mother, as follows:
(a)for a period of five hours each Sunday commencing at such time as is agreed and in the absence of agreement at 10.00 am each Sunday at a place agreed between the father and the mother or, in the absence of such agreement, Location 1, Sydney Suburb 1 NSW [postcode omitted] and
(b)from after pre-school or school, as appropriate, to 5.30 pm on one weekday each week, as nominated by the mother at least seven days in advance, at a park near the child’s pre-school or school or, in the event of inclement weather, Location 2, Sydney Suburb 2 NSW [postcode omitted].
The time spent by the child with the mother pursuant to Order 3 be supervised by a supervisor appointed by S Family Services. The Independent Children’s Lawyer is to do all things necessary to cause S Family Services to produce a report following…
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- Galloway and Steele [2011] FamCA 550
- Case
- [2011] FamCA 550
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of equal shared parental responsibility for major long-term decisions, the primary residence of the child, and the specific time the child would spend with each parent. Further issues included the supervision of the child's time with the mother, the need for counselling for both parents, and the preparation of updated reports to assess the child's welfare and the parents' capacities. The court also addressed the child's surname and the provision of assistance for compliance with the orders.
Fowler J made orders establishing equal shared parental responsibility for major long-term decisions, with a structured process for resolving disagreements. The child was ordered to live with the father. Initially, the child's time with the mother was to be supervised, with the mother bearing the costs. Both parents were ordered to attend counselling, and the Independent Children's Lawyer was granted leave to provide relevant reports to the psychologists. The court also ordered an updated report from a consultant after eight months, followed by a review conference, to inform future parenting arrangements. Subsequent orders detailed a phased increase in the child's time with the mother, including specific arrangements for holidays and birthdays, and provisions for communication between parents and the child. The child's surname was ordered to be "Steele-Galloway," and the child was removed from a watch list by consent. Finally, a Family Consultant was appointed to assist parties with compliance for 12 months, and the Independent Children's Lawyer's application for costs was listed for mention.
Orders
Orders of the court
1.
The father and the mother have equal shared parental responsibility for the making of major long-term decisions concerning the child, J (“the child”), born on … February 2007. The parent proposing the making of such a decision is to inform the other parent of his or her proposal, and the other parent is then, within seven days, to inform the proposing parent as to whether he or she agrees to the proposal. In the event that the other parent does not agree to the proposal, he or she is also, within the seven day period, to provide to the proposing parent reasons for the disagreement and any alternative proposal. In the event of continuing disagreement, the father and the mother are, within a further fourteen days, to submit their disagreement to mediation by a mediator, who is chosen by the other parent from a panel of three mediators chosen by the proposing parent.
2.
The child live with the father.
3.
Commencing one month from the date of these Orders and for a period of twelve months, the child spend time with the mother, unless otherwise agreed between the father and the mother, as follows:
(a) for a period of five hours each Sunday commencing at such time as is agreed and in the absence of agreement at 10.00 am each Sunday at a place agreed between the father and the mother or, in the absence of such agreement, Location 1, Sydney Suburb 1 NSW [postcode omitted] and
(b) from after pre-school or school, as appropriate, to 5.30 pm on one weekday each week, as nominated by the mother at least seven days in advance, at a park near the child’s pre-school or school or, in the event of inclement weather, Location 2, Sydney Suburb 2 NSW [postcode omitted].
4.
The time spent by the child with the mother pursuant to Order 3 be supervised by a supervisor appointed by S Family Services. The Independent Children’s Lawyer is to do all things necessary to cause S Family Services to produce a report following each period of time spent by the child with the mother, and the mother is to bear the cost of the supervision of that time and the preparation of that report.
5.
The mother attend upon a clinical psychologist recommended by Dr W for the purposes of receiving the following:
(a) counselling in relation to parenting; and in particular dealing with the child’s behavioural problems and
(b) counselling in relation to her relationship with the father as a co-parent and her views about him.
6.
The father attend upon a psychologist recommended by Dr W for the purposes of receiving the following:
(a) counselling in relation to parenting
(b) counselling in relation to his relationship with the mother as a co-parent and
(c) counselling in relation to the management of any grief or distress which the child may experience as a consequence of separating from the mother.
7.
Leave is granted to the Independent Children’s Lawyer to provide a copy of the reports of Dr W made herein and the transcript of his oral evidence in these proceedings to the psychologists engaged pursuant to Orders 5 and 6.
8.
Upon the expiration of a period of eight months from the date of these Orders, the father and the mother attend on Dr W at the joint expense of the parties for the purpose of enabling him to prepare an updated report. That report is to address the following matters:
(a) the child’s relationship with each parent
(b) the impact on the child of the change in his living arrangements
(c) the status of the child’s behavioural disorder and each parent’s capacity to manage the child’s behaviour and
(d) each parent’s willingness to encourage the child’s relationship with the other parent.
Upon the release of the report, the Independent Children’s Lawyer is to arrange a Legal Aid Conference, and the father and the mother are to attend that conference for the purpose of reviewing the parenting arrangements of the child.
9.
Upon the expiration of a period of 28 days from the release of the report prepared pursuant to Order 8, the child spend time with the mother, unless otherwise agreed between the father and the mother or ordered by the Court, as follows:
(a) each alternate weekend from after pre-school or school, as appropriate, on Friday to before pre-school or school on Monday, with the mother to collect the child from and return the child to pre-school or school at the commencement and conclusion of that time
(b) each Wednesday from 3.30 pm to 6.30 pm, with the mother to collect the child from pre-school or school at the commencement of that time and deliver the child to the father at Location 3, Sydney Suburb 3 NSW [postcode omitted] at the conclusion of that time
(c) on one additional weekday each fortnight as agreed between the father and the mother from 3.30 pm to 6.30 pm, with the mother to collect the child from pre-school or school at the commencement of that time and return the child to the father at Location 3, Sydney Suburb 3 NSW [postcode omitted] at the conclusion of that time
(d) from 9.00 am to 5.00 pm on Mother’s Day
(e) from 2.00 pm on Christmas Day to 5.00 pm on Boxing Day in 2011 and
(f) from 4.00 pm on New Year’s Eve in 2011 to 4.00 pm on New Year’s Day in 2012.
10.
Until the child commences primary school, during each calendar year, the child spend time with the mother for up to four additional periods of three days including overnight, as nominated by the mother at least 14 days in advance.
11.
Upon the child commencing primary school, the child spend time with the mother for one half of each school holiday period, including the mid term and Christmas school holiday periods, as agreed or, in the absence of agreement, being the first half in even-numbered years and the second half in
odd-numbered years.
12.
When the child is living with the father for the first half of a Christmas school holiday period pursuant to Order 11, the child spend time with the mother from 12.00 pm on Christmas Eve to 12.00 pm on Christmas Day; and that, when the child is spending time with the mother for the first half of a Christmas school holiday period pursuant to Order 11, the child spend time with the father from 12.00 pm on Christmas Eve to 12.00 pm on Christmas Day.
13.
Notwithstanding any other Order, the child spend time with the parent with whom he is not living or spending time on the child’s birthday as agreed or, in the absence of agreement, from 3.00 pm to 6.00 pm, with that parent to collect the child from and return the child to Location 3, Sydney Suburb 3 NSW [postcode omitted] at the commencement and conclusion of that time.
14.
Notwithstanding any other Order, the child spend time with the father from 9.00 am to 5.00 pm on Father’s Day.
15.
Unless otherwise specified in these Orders, the mother collect the child from Location 3, Sydney Suburb 3 NSW [postcode omitted] at the commencement of the time spent by the child with her pursuant to these Orders and return the child to Location 4, Town 1 NSW [postcode omitted] at the conclusion of that time.
16.
After the expiration of the period during which the time spent by the child with the mother is to be supervised pursuant to Order 4, the child spend time with a parent for a period of 14 days on two occasions each year subject to that parent providing at least seven days’ notice to the other parent on each occasion and these Orders be suspended for that period. The time otherwise spent by the child with the other parent during that period is to be made up as soon as practicable.
17.
If the mother is unable to attend upon the time to be spent by the child with her during school holiday periods pursuant to these Orders, she notify the father in writing as soon as practicable and the child shall in that event remain in the care of the father.
18.
Each parent be at liberty to communicate with the child by telephone at reasonable times and under reasonable circumstances while the child is in the other parent’s care, and that the other parent facilitate such telephone communication. Each parent is to keep the other parent informed of his or her contact number for this purpose.
19.
Each parent is restrained from denigrating, or permitting another person to denigrate, the other parent in the presence or within the hearing of the child.
20.
The child shall be known as “[J Steele-Galloway]” and each party shall be and is hereby restrained from registering or referring to the child’s family name as any name other than “[Steele-Galloway]”.
21.
By consent the child J (a male) born on … February 2007 be removed from the Watch List.
22.
Pursuant to s65L of the Family Law Act 1975 (Cth) a Family Consultant as nominated by the Manager, Child Dispute Services of the Sydney Registry of this Court, give to any party to these Orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, these Orders for a period of 12 months from the date of these Orders.
23.
The Independent Children’s Lawyer’s application for costs is listed for mention before Justice Fowler at 9.30 am on Thursday, 11 August 2011.
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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