Gbenga and Sunette - [2013] FamCA 49

FAMILY COURT OF AUSTRALIA

GBENGA & SUNETTE [2013] FamCA 49

FAMILY LAW – CHILDREN – Child related proceedings – Evidence relating to child abuse or family violence – Best interests – Risk – Parental Responsibility – Presumption of equal shared parental responsibility – Rebuttable presumption – With whom a child lives – Family violence – With whom a child spends time – With whom a child communicates – Best interests of a child
FAMILY LAW - FAMILY VIOLENCE - Where the father has a criminal record - Where family violence occurred towards a child – Where family violence occurred towards the mother – Where a complaint had been made against the father

Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 60D, s 60DA, s 60DAA

Prince & Walsh [2012] FamCA 275

APPLICANT: Mr Gbenga

RESPONDENT: Ms Sunette

INDEPENDENT CHILDREN’S LAWYER: Michael Emerson

FILE NUMBER: BRC 10263 of 2009

DATE DELIVERED: 8 February 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 25, 26, 27 and 28 October 2011
REPRESENTATION

FOR THE APPLICANT: Mr Gbenga in Person

COUNSEL FOR THE RESPONDENT: Ms Cuthbert of Counsel

SOLICITOR FOR THE RESPONDENT: Richard Gray & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Emerson Family Law

Orders
(1)The mother have sole parental responsibility for the children, B born … May 2006 and D born … August 2007.
(2)The father’s application for parenting orders in respect of the said children is dismissed.
(3)The father, Mr Gbenga, is restrained and an injunction is granted restraining him from:
(a)approaching or coming within 500 metres of the mother’s residence or place of employment; and/or

(b) approaching or contacting the mother in any other way; and/or
(c)approaching, communicating with, or contacting any other person so as to have them approach, communicate with or contact the mother or the children.

(4) The Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gbenga & Sunette has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE
FILE NUMBER: BRC 10263 of 2009

Mr Gbenga
Applicant
And

Ms Sunette
Respondent
REASONS FOR JUDGMENT
1.Mr Gbenga, (“the father”) applies to the Court for orders that permit two of his children to spend time and communicate with him. I do not consider that it is in their best interests to spend any time with him or to have any form of communication with him. Their mother, Ms Sunette, (“the mother”) suffered appalling violence, abuse and deprivation at the hands of the father just after he brought her as his wife to this country from their native Africa. Fortunately, whilst pregnant with their second child, she managed to escape from that horror, taking their baby with her. She has stayed in hiding from the father since.
2.Initially, after that separation, the mother struggled to parent…

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 Gbenga and Sunette

Details

AGLC: Gbenga and Sunette [2013] FamCA 49
Case: [2013] FamCA 49
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by Mr Gbenga (the father) for parenting orders concerning his two young sons, B and D. The respondent was Ms Sunette (the mother), who sought to prevent the father from having any contact with the children. The Independent Children’s Lawyer was also involved in the proceedings.

The central legal issues before the Court were whether it was in the best interests of the children for them to spend time and communicate with their father, and whether the presumption of equal shared parental responsibility applied. The Court was required to consider the provisions of the *Family Law Act 1975* (Cth), including those relating to child abuse, family violence, and the best interests of a child.

The Court found that the mother had suffered appalling violence, abuse, and deprivation at the hands of the father, including physical beatings, strangulation threats, sexual abuse, and deprivation of food. The Court was satisfied that the mother would not cope psychologically if required to facilitate contact between the father and the children. Crucially, the Court found that there was an unacceptable risk of emotional or physical harm to the boys if they were to communicate with or spend time with their father. This risk outweighed any potential benefits. The Court also considered the father's criminal history, which included convictions for common assault and indecent treatment of a child, and evidence of his violent behaviour towards his eldest son and his second wife.

The Court ordered that the mother have sole parental responsibility for the children, dismissed the father's application for parenting orders, and granted an injunction restraining the father from approaching or contacting the mother. The Independent Children's Lawyer was discharged.

Orders