George and Kopek - [2011] FMCAfam 776

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GEORGE & KOPEK

[2011] FMCAfam 776

FAMILY LAW – Children – parental responsibility – allegations of sexual abuse – allegations of family violence – unacceptable risk – high level of parental conflict – relocation – indefinite supervised time.

Family Law Act 1975 (Cth), ss.4, 4(1), 60B, 60B(2), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j) 60CC(3)(k), 60CC(3)(l), 60CC(3)(m), 60CC(4), 60CC(4A), 60CG, 61DA, 65DAA, 69ZT
Evidence Act 1995 (Cth), s.140

M v M (1988) 166 CLR 69
Johnson & Page (2007) FLC 93-344
A & A (1998) FLC 92-800
Taylor & Barker (2007) FLC 93-345
Mazorski v Albright (2007) 37 Fam LR 518
Stevenson v Hughes (1993) FLC 92-362
TF & JF & Children’s Representative (2005) FLC 93-227
W & W (2005) FLC 93-235
Moose & Moose (2008) FLC 93-375
Champness & Hanson (2009) FLC 93-407
H v K [2001] FamCA 687
Rice & Asplund (1979) FLC 90-725

Applicant:

MR GEORGE

Respondent:

MS KOPEK

File Number:

MLC 8663 of 2008

Judgment of:

Baker FM

Hearing dates:

22, 23, 24 and 25 February 2011 and 12 and 13 May 2011

Date of Last Submission:

13 May 2011

Delivered at:

Hobart

Delivered on:

3 August 2011

REPRESENTATION

Counsel for the Applicant:

Ms Elleray

Solicitors for the Applicant:

Lawsons McDonald Scott & Waters

Counsel for the Respondent:

Mr MacFarlane

Solicitors for the Respondent:

Hiller Quinn Law

Counsel for the Independent Children’s Lawyer:

Mr Whitchurch

Solicitors for the Independent Children’s Lawyer:

Heinz & Partners

ORDERS

The mother Ms Kopek have the sole parental responsibility for the children, [X] born [in] 2002, [Y] born [in] 2004 and [Z] born [in] 2006 (“the children”).
The children live with the mother.
The father Mr George spend time with and communicate with the children each alternate weekend on either Saturday or Sunday for a period of up to four hours, to be supervised by the [B] Children's Contact Service ([S]) or such other registry approved children’s contact service (such time to be spent in accordance with the directions of the contact services Director).
The father is at liberty to send and/or give to the children birthday and Christmas cards and presents from time to time, and the mother shall ensure that they are provided to the children.
The mother provide the father with no less than 28 days written prior notice of her intention to travel interstate with the children or any of them and to the extent that any travel impacts on the time spend with periods enjoyed by the father the mother shall provide make up time.
The father shall not unreasonably withhold his consent to the mother’s travel interstate with the children or any of them, provided that the mother complies with order 5.
The mother shall:
(a)Keep the father advised at all times of the current residential address for the children,
(b)Advise the father immediately in the event that the children suffer any serious illness or injury,
(c)Authorise any medical practitioner upon which…

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 George and Kopek

Details

AGLC: George and Kopek [2011] FMCAfam 776
Case: [2011] FMCAfam 776
Decision Date: 3 August 2011

CaseChat Overview and Summary

In the case of George and Kopek, the parties were involved in a dispute concerning the care and custody of their three children. The matter was heard in the Family Court of Australia, where the judge was tasked with determining the best arrangements for the children's welfare.

The primary legal issues before the court were the allocation of parental responsibility, the visitation rights of the father, and the conditions under which the children could travel with their mother. Additionally, the court had to consider the necessity for both parents to participate in parenting programs and the father's need for anger management training.

The court's decision granted sole parental responsibility to the mother, Ms Kopek, while allowing the father, Mr George, to have supervised visitation with the children every alternate weekend. The visitation was to be facilitated by the [B] Children's Contact Service or an approved alternative. The court also mandated that both parents complete a Post Separation Parenting Program and that the father undertake an anger management course. Furthermore, the court outlined conditions for the mother's relocation to Queensland, including specific arrangements for continued contact between the father and the children. The Independent Children's Lawyer's role was extended to ensure the children's best interests were represented throughout the process.

Orders

Orders of the court

The mother Ms Kopek have the sole parental responsibility for the children, [X] born [in] 2002, [Y] born [in] 2004 and [Z] born [in] 2006 (“the children”).

The children live with the mother.

The father Mr George spend time with and communicate with the children each alternate weekend on either Saturday or Sunday for a period of up to four hours, to be supervised by the [B] Children's Contact Service ([S]) or such other registry approved children’s contact service (such time to be spent in accordance with the directions of the contact services Director).

The father is at liberty to send and/or give to the children birthday and Christmas cards and presents from time to time, and the mother shall ensure that they are provided to the children.

The mother provide the father with no less than 28 days written prior notice of her intention to travel interstate with the children or any of them and to the extent that any travel impacts on the time spend with periods enjoyed by the father the mother shall provide make up time.

The father shall not unreasonably withhold his consent to the mother’s travel interstate with the children or any of them, provided that the mother complies with order 5.

The mother shall:

(a) Keep the father advised at all times of the current residential address for the children,

(b) Advise the father immediately in the event that the children suffer any serious illness or injury,

(c) Authorise any medical practitioner upon which the children may attend from time to time to communicate with the father in respect of the children’s medical condition and/or requirements,

(d) Provide the father within 14 days details of any changes to the children’s medical practitioners or schools, kindergartens and childcare centres, such advice to be given by the mother in writing to the father c/- the paternal grandparents’ address in [N],

(e) Authorise all school, kindergartens and childcare centres at which the children may attend to:

(i) Provide the father, at the expense of the father, copies of all reports, notices and photographs in relation to the children;

(ii) Communicate with the father either by telephone, or in writing, in respect of the children’s progress.

The mother and father and their servants and agents are hereby restrained for denigrating each other in the presence or hearing of the children or permitting any other person to do so.

The mother:

(a) Attend and complete, as soon as practicable, a Post Separation Parenting Program.

(b) Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.

(d) Provide evidence to the father’s solicitor and the Independent Children’s Lawyer that she has enrolled in the program.

(e) Provide evidence to the father’s solicitor and the Independent Children’s Lawyer that she has successfully completed the program.

10.

The father:

(a) Attend and complete, as soon as practicable, a Post Separation Parenting Program.

(b) Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.

(d) Provide evidence to the mother’s solicitor and the Independent Children’s Lawyer that he has enrolled in the program.

(e) Provide evidence to the mother’s solicitor and the Independent Children’s Lawyer that he has successfully completed the program.

11.

The father attend the anger management course, On-Going Change for a period of 12 months.

12.

The father shall:

(a) contact the [B] [S] Children's Contact Service within 45 days and arrange an appointment for an assessment for suitability for supervised time;

(b) attend the assessment;

(d) comply with all rules of the [B] [S] Children's Contact Service;

(e) comply with all reasonable requests or directions of staff of the [B] [S] Children's Contact Service.

If, after assessment, the parties are accepted by the [B] [S] Children's Contact Service as suitable for supervised time, the father is to spend time with the children in accordance with order (3).

13.

In the event the father does not enrol in the [B] [S] Children's Contact Service within a period of 45 days from the date of these orders, or fails to spend time with the children pursuant to these orders for a consecutive period of three months without providing any medical certificates, the mother be permitted to relocate the children to Queensland.

14.

In the event the mother relocates to Queensland pursuant to order 13 herein the father spend time with and communicate with the children as follows:

(a) Via Skype or telephone once in each week at a time and day agreed between the parties in writing and failing agreement each Sunday between 6.00pm – 6.30pm.

(b) At a contact centre in [U] on such occasions as the father is able to travel to [U] and subject to availability of the contact centre, such time to be supervised by the contact centre and the father is to provide the mother with 28 days notice in writing of any such proposed visit.

15.

The appointment of the Independent Children’s Lawyer be extended for a period of three months.

16.

The father shall keep the mother advised at all times of his current residential address.

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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