George & Nichols - [2016] FamCA 519

FAMILY COURT OF AUSTRALIA

GEORGE & NICHOLS

[2016] FamCA 519

FAMILY LAW – CHILDREN – where the child has been living with the mother and not spending any time with the father – where the father was acquitted of charges of sexual offences against the child’s half-sister – where the father was preoccupied with these charges – where the father did not ask any question of any witness in relation to the subject child – where the father did not direct any submission to the child’s time with him - where the father admitted acts of family violence – where father’s own admissions form basis for finding that the child would be exposed to an unacceptable risk of harm were she to spend time with the father – where the mother genuinely believes the father sexually assaulted her daughter from a previous relationship – where that belief is not irrational or baseless – where the mother’s parenting capacity would be compromised were the child to spend any time with the father.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637

Blinko & Blinko [2015] FamCAFC 146

Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
Russell and Close (unreported, Family Court of Australia Full Court, Fogarty, Baker and Lindenmayer JJ, 25 June, 1993)
SCVG & KLD (2014) FLC 93-582

The Marriage of N & S (1996) FLC 92-655

APPLICANT:

Mr George

RESPONDENT:

Ms Nichols

INDEPENDENT CHILDREN’S LAWYER

Sue Duncan

FILE NUMBER:

BRC

2291

2013

DATE DELIVERED:

29 June 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

14 - 16 June 2016

REPRESENTATION

APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr. D. Carlton

SOLICITOR FOR THE RESPONDENT:

Burchill & Horsey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr. G. Andrew
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms. Sue Duncan, Legal Aid Queensland

Orders

The mother shall have sole parental responsibility for the child B born … 2010.
B shall live with the mother.
The father shall spend no time with B.
The father is restrained and an injunction hereby issues restraining the father from initiating or causing any other person initiating any communication with B or from attending at any school that she attends from time to time.
The father is restrained and an injunction hereby issues restraining the father from approaching Ms Nichols or Ms C Nichols born .. 1995 or attending at their place of residence or their place of employment.
The father shall forthwith delete from any device in his possession or control any image of Ms C Nichols, save that, prior to doing so, the father may if he chooses, provide a USB memory stick of all such images to the Independent Children’s Lawyer to be held in safe custody for a period of 12 months whereupon it shall be destroyed.

Miscellaneous

All outstanding applications are dismissed and removed from the list of cases awaiting finalisation.
The appointment of…

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 & Nichols

Details

AGLC: George & Nichols [2016] FamCA 519
Case: [2016] FamCA 519
Decision Date: 29 June 2016

CaseChat Overview and Summary

In the matter of *George & Nichols*, Carew J of the Federal Circuit and Family Court of Australia considered a dispute between a mother and father concerning their child, B. The proceedings involved applications relating to parental responsibility, living arrangements, and contact between the father and the child, as well as orders concerning the father's conduct towards Ms Nichols and Ms C Nichols.

The court was required to determine the most appropriate orders for the child B, specifically regarding parental responsibility, where the child would live, and whether any time should be spent with the father. Additionally, the court had to consider whether injunctive relief was necessary to restrain the father's conduct towards B, Ms Nichols, and Ms C Nichols, including prohibitions on communication and attendance at specific locations.

Carew J made orders granting the mother sole parental responsibility for B and stipulating that B would live with the mother. Crucially, the father was ordered to spend no time with B and was restrained by injunction from initiating or causing any communication with B or attending at B's school. Further injunctions were issued restraining the father from approaching Ms Nichols or Ms C Nichols, or attending their residences or places of employment. The father was also ordered to delete images of Ms C Nichols from his devices, with an option to provide them to the Independent Children’s Lawyer for safekeeping. All outstanding applications were dismissed, and the appointment of the Independent Children’s Lawyer was discharged. The orders included a fact sheet detailing obligations and consequences of contravention.

Orders

Orders of the court

The mother shall have sole parental responsibility for the child B born … 2010.

B shall live with the mother.

The father shall spend no time with B.

The father is restrained and an injunction hereby issues restraining the father from initiating or causing any other person initiating any communication with B or from attending at any school that she attends from time to time.

The father is restrained and an injunction hereby issues restraining the father from approaching Ms Nichols or Ms C Nichols born .. 1995 or attending at their place of residence or their place of employment.

The father shall forthwith delete from any device in his possession or control any image of Ms C Nichols, save that, prior to doing so, the father may if he chooses, provide a USB memory stick of all such images to the Independent Children’s Lawyer to be held in safe custody for a period of 12 months whereupon it shall be destroyed.

Miscellaneous

All outstanding applications are dismissed and removed from the list of cases awaiting finalisation.

The appointment of the Independent Children’s Lawyer is discharged.

Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this order creates and the particulars of the consequences that may follow if a person contravenes this order, and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto. And these particulars are included in this order.

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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