FAMILY COURT OF AUSTRALIA
| GEIGER & GEIGER | [2010] FamCA 796 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – Allegations of sexual abuse of children by father – Finding no sexual abuse – Allegation of unacceptable risk – Finding no unacceptable risk – Restraint on mother not to take children to organisation known as Z Organisation – Male child has very conflicted relationship with father possibly caused by mother’s belief system as to sexual abuse – Consideration of whether children at risk of emotional abuse in mother’s household – Consideration of whether mother’s belief system may change after the trial process – Order made for equal shared parental responsibility – Children to live with mother and spend holiday time with father – Children to attend specialist paediatrician – Ancillary orders |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 65DA |
| B and B (1993) FLC 92-357 Bookhurst & Bookhurst [2010] FamCAFC 26 Briginshaw v Briginshaw (1938) 60 CLR 336 Friscioni & Friscioni [2010] FamCAFC 108 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Hilton v Allen (1940) 63 CLR 691 Jacks v Samson (2008) FLC 93-387 Johnson & Page (2007) FLC 93-344 Korban & Korban [2009] FamCAFC 143 Lindsay & Baker (2007) FLC 93-347 L & T (1999) FLC 92-875 M and M (1988) 166 CLR 69 Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638 Marsden & Winch [2009] FamCAFC 152 Mazorski & Albright [2007] 37 FamLR 518 McCall & Clark [2009] FamCAFC 92 Miller & Harrington (2008) FLC 98-383 MRR and GR [2010] HCA 4 Napier and Hepburn (2006) FLC 93-303 N & S (1996) FLC 92-655 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Reifek v McElroy (1965) 112 CLR 517 Rice and Asplund (1979) FLC 90-725 Russell v Close [1993] FamCA 62 In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 WK v SR (1997) FLC 92-787 at 84,694 |
| APPLICANT: | Ms Geiger |
| RESPONDENT: | Mr Geiger |
| FILE NUMBER: | BRC | 14238 | of | 2007 |
| DATE DELIVERED: | 10 September 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 15, 16, 17, 18 and 19 March, 14, 17 and 18 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ashcroft |
| SOLICITOR FOR THE APPLICANT: | Family Lawyers & Mediation Services |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Family Law Doyle Keyworth & Harris |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Burridge |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kushal Bridges Family Law Specialists |
Orders
Parental responsibility
Subject to the specific orders below concerning the children’s education (orders 13-17) and health, therapy or counselling (orders 18-20) the parties have equal shared parental responsibility for J born … December 2001 and A born … March 2004 (the children) for decisions in relation to the major long-term issues concerning them including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for…
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- AGLC
- Geiger and Geiger [2010] FamCA 796
- Case
- [2010] FamCA 796
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were how to best promote the children's welfare in light of past allegations of excessive physical discipline by the father, and how to structure the parents' future decision-making and interactions to minimise conflict and ensure the children's safety and well-being. This involved assessing the evidence of past conduct and determining appropriate protective measures for the children.
O'Reilly J made orders for equal shared parental responsibility for major long-term issues, requiring the parents to consult in writing and, if necessary, engage a dispute resolution practitioner. The children were ordered to live with the mother, with specific provisions for time spent with the father during school holidays. The court also made detailed orders regarding communication, gifts, changeovers, education, and health, including restrictions on the mother taking the children to certain counselling services. Crucially, the court found abundant evidence that the father had used excessive physical discipline in the past, though some descriptions of injury were considered embellished. The orders included provisions for the father to receive school communications but otherwise restricted his attendance at the school, and mandated that neither parent denigrate the other or discuss the proceedings with the children. The independent children's lawyer was to remain in place for 18 months.
Orders
Orders of the court
Parental responsibility
1.
Subject to the specific orders below concerning the children’s education (orders 13-17) and health, therapy or counselling (orders 18-20) the parties have equal shared parental responsibility for J born … December 2001 and A born … March 2004 (the children) for decisions in relation to the major long-term issues concerning them including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for the children to spend time with the parties or either of them.
2.
In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
3.
In relation to such consultations:
a. the parent wishing to make a proposal as to a major long-term issue make it in writing to the other parent setting out the advantages of the proposal perceived by that parent and reasoning supporting it
b. the other parent respond in writing to the proposal by either agreeing with it or making a different proposal setting out the advantages of any different proposal and reasoning supporting it
c. if after such consultation a joint decision is not able to be made the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve the issue.
Living arrangements
4.
The children live with the mother.
5.
The children spend time with the father as may be agreed between the mother and the father but at least:
a. for the whole of the March/April, June/July and September/October school holiday periods commencing at 12 noon on the first Saturday and concluding at 12 noon on the last Saturday of each such period;
b. for two weeks of each of the Christmas school holiday periods, for those commencing in the odd years from 12 noon 14 days before Boxing Day until 12 noon on Boxing Day and for those commencing in the even years from 12 noon on Boxing Day until 12 noon 14 days later.
Telephone communication
6.
If the children express the wish to the mother to telephone the father she facilitate that by permitting/assisting the children to dial his home telephone number once each week between 6.00pm and 6.30pm.
Gifts
7.
The father may give the children Christmas, birthday and other gifts during any school holiday period they spend with him.
Changeover
8.
For the September/October 2010 school holiday period changeover be facilitated by arrangements to be made between the independent children’s lawyer and Mr C, family consultant (or if he be not available another family consultant nominated by the Manager Child Dispute Services) at 4.00pm on the last day of the school term for the commencement of time and at 4.00pm on the last Friday of the school holiday period for the conclusion of time.
9.
On that occasion Mr C (or other family consultant nominated by the Manager Child Dispute Services) explain to the children that they will be spending time with the father for the holidays and then returning to the mother.
10.
The mother, to facilitate changeover at the commencement of such time, must bring the children to Child Dispute Services at 3.30pm and depart as soon as the children are delivered, and the father collect the children at 4.00pm, and at the conclusion of time the father deliver the children to Child Dispute Services at 3.30pm and depart immediately and the mother collect them at 4.00pm.
11.
In relation to the Christmas 2010/2011 school holiday period and all subsequent holiday periods the father collect the children at 12 noon on the designated commencement day at a place nominated by the mother to the father in writing (for example, the Shell Garage at … or McDonalds at …) and return the children to the mother at that place at 12 noon on the designated return day.
12.
For the purpose of such changeovers the father may be accompanied by his partner Ms H and the mother by her partner Mr M and the father and the mother must ensure that they not come within ten metres distance from each other.
Education
13.
Unless there be a joint decision to the contrary, the mother must ensure that the children remain enrolled at the O State School and ensure that the children attend school on all school days unless genuinely ill.
14.
The mother and Mr M, and the father, Ms H and their children may attend all scheduled school functions usually attended by parents.
15.
The father and the mother on such occasions must ensure that they not come within ten metres distance from each other.
16.
The father and Ms H otherwise must not attend at the children’s school unless contacted by the school in relation to any accident or emergency.
17.
The father, by direct arrangement with the children’s school, may receive all letters, circulars, school reports, activity sheets, school photographs and so forth usually provided by the school to parents.
Health and counselling
18.
The mother must ensure that the children attend upon Dr G, paediatrician, P Medical Centre, for all appointments advised by him and that they attend upon all appointments that he may advise or refer at Children’s Youth Medical Health Service or other therapy or counselling.
Restraint on the mother
19.
The mother must not take the children to any therapy or counselling other than upon referral by Dr G.
20.
In particular, the mother must not take the children to any counselling or services of any kind with any person associated with the organisation known as Z Organisation or any other organisation specialising in or purporting to specialise in sexual abuse of children.
Dr G
21.
The independent children’s lawyer provide a copy of these orders and reasons for judgment to Dr G.
Information
22.
The parties must notify and keep each other informed of his and her residential address, email address, text message service number, landline and mobile telephone numbers.
23.
The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.
24.
The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend and authorise such to provide to the other at his/her request and expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.
Mr M
25.
The mother must encourage the children to call Mr M by his first name and use her best endeavours to ensure that Mr M provides similar encouragement to the children, provided that such be firm but without chastisement.
Corporal punishment
26.
The parties must not use corporal punishment in relation to the children and use their best endeavours to ensure that their respective partners do not do so.
Non denigration
27.
The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the children.
Discussions with the children
28.
The mother and the father must not discuss with the children any allegations or disclosures made in these proceedings and use their best endeavours to ensure that their respective partners do not do so and the mother must use her best endeavours also to ensure that the children’s sibling T not do so.
All other orders discharged
29.
All other orders concerning the children are discharged.
All other applications dismissed
30.
All other applications concerning the children are dismissed.
Independent children’s lawyer
31.
The independent children’s lawyer not be discharged for 18 months.
Liberty to apply
32.
The parties and the independent children’s lawyer have liberty to apply on short notice to the Associate by email if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification or if any machinery or s65L orders involving Mr C the family consultant are sought to be made.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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