GIORDANO & SICA - [2012] FamCA 64

FAMILY COURT OF AUSTRALIA

GIORDANO & SICA

[2012] FamCA 64

FAMILY LAW - CHILD ABUSE - Sexual abuse - risk – where the father alleged to have sexually abused the mother’s sister, niece, and daughter - where the father seeks equal shared time with the child - where the father has not been accused of sexually abusing the child he is seeking equal shared time with - where the father was convicted of having sexual intercourse with a person with an intellectual disability, with the intention to exploit her - found that there is a risk that the father will sexually abuse the child if she is in his care

FAMILY LAW - CHILDREN - Parental responsibility - where presumption in favour of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of another child who is a member of the parent's family - where father alleged to have sexually abused the mother’s sister, niece, and daughter - found reasonable grounds to believe that the father sexually abused the mother’s sister, niece, and daughter when they were children

FAMILY LAW - CHILDREN - With whom a child spends time - Sexual abuse - whether risk that the father will sexually abuse the child when in his care is unacceptable - where supervision available from paternal grandmother and father’s wife - found risk is acceptable when the child’s time with the father is limited to day time, supervised visits

Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 60CC, 61DA(2), and s 65DAA

APPLICANT:

Mr Giordano

RESPONDENT:

Ms Sica

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

WOC

493

2009

DATE DELIVERED:

24 February 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

14, 15, 16, & 17 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

Marsdens Law Group

SOLICITOR FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED

That all previous parenting orders are discharged.
That the mother have sole parental responsibility for the children, D born … October, 1996 and K, born … August 2000.

That the child, K ("the child") born … August 2000 spend time with the father as follows:
a) Each alternate Sunday from 9.00 am to 5.00 pm.

b)     Each Christmas Day from 2.00 pm to 8.00 pm.
c)     On Fathers’ Day from 9.00 am to 5.00 pm.
d)     On the Sunday that falls closest to K's birthday from 9.00 am to 5.00 pm.
e)     If K's time with her father falls on Mothers’ Day, then K will spend that day with her mother instead of her father.
f)   In the event K is unable to spend time with her father in accordance with Order 3 (a) herein, then K will spend the following Sunday with the father from 9.00…

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 GIORDANO & SICA

Details

AGLC: GIORDANO & SICA [2012] FamCA 64
Case: [2012] FamCA 64
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the matter of *GIORDANO & SICA*, Rees J of the Family Court of Australia considered parenting orders concerning the child K. The father sought equal shared time with K, but the mother alleged that the father had sexually abused her sister, niece, and daughter. While the father had not been accused of abusing K directly, he had a prior conviction for sexual intercourse with a person with an intellectual disability with the intention to exploit her.

The court was required to determine whether the presumption of equal shared parental responsibility applied, given the allegations of abuse against the father. It also had to assess the risk of the father sexually abusing K if she were to spend time with him, and whether such a risk would be unacceptable.

Rees J found that there were reasonable grounds to believe the father had sexually abused the mother’s sister, niece, and daughter when they were children, which meant the presumption of equal shared parental responsibility did not apply. The court determined that while there was a risk of the father sexually abusing K, this risk was acceptable when K's time with him was limited to supervised daytime visits. The court discharged previous parenting orders and made new orders granting the mother sole parental responsibility for K and her sibling D. K was ordered to spend limited, supervised time with the father on alternate Sundays, Christmas Day, Father's Day, and K's birthday, with specific provisions for supervision by nominated individuals until K turned 15. The father was also restrained from contacting or approaching D.

Orders

Orders of the court

IT IS ORDERED

That all previous parenting orders are discharged.

That the mother have sole parental responsibility for the children, D born … October, 1996 and K, born … August 2000.

That the child, K ("the child") born … August 2000 spend time with the father as follows:

a) Each alternate Sunday from 9.00 am to 5.00 pm.

b) Each Christmas Day from 2.00 pm to 8.00 pm.

c) On Fathers’ Day from 9.00 am to 5.00 pm.

d) On the Sunday that falls closest to K's birthday from 9.00 am to 5.00 pm.

e) If K's time with her father falls on Mothers’ Day, then K will spend that day with her mother instead of her father.

f) In the event K is unable to spend time with her father in accordance with Order 3 (a) herein, then K will spend the following Sunday with the father from 9.00 am to 5.00 pm as 'make-up' time.

That there be telephone calls at any reasonable time with the father when K is with the mother.

That for the purpose of K spending time with the father in accordance with Order 3 herein, the mother or a person nominated by the mother is to deliver K to the father's residence at the commencement of her time with the father and the father or a person nominated by the father is to return K from the father's residence at the conclusion of her time with the father.

That for the purpose of K spending time with her father in accordance with Order 3 herein, such time shall be supervised by Ms G or if she is not available, by Ms KK, until K attains the age of 15 years.

That upon K attaining the age of 15 years, K shall spend time with her father as agreed between the father, the mother and K.

That each party will ensure the other party is kept informed of:

a) Any medical problems or illnesses suffered by K whilst in their respective care.

b) Any medication that has been prescribed for K.

c) Any other matter relevant to the K's welfare.

That within 14 days of these Orders and within 14 days of K's subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school that K may attend from time to time, that school forward directly to the father copies of all of the child's school reports and merit cards, any written material pertaining to the child's academic and extra-curricular activities.

10.

That the mother furnish to the father within 7 days of receipt of same copies of all order forms for school photographs of K.

11.

That as soon as practicable after the publication of the Reasons and Orders, the mother shall arrange an appointment for K with Ms Z, Court Consultant and the Independent Children's Lawyer, for the purpose of explaining the nature and effect of these Orders.

12.

That at Ms Z's discretion, Ms Z shall refer K to an appropriate Child and Family Therapist for K to attend upon for such therapy as recommended and to continue to attend sessions as recommended by the Therapist.

13.

That the Independent Children's Lawyer provide to the nominated Therapist the following documents:

a) The Family Report dated 5th September, 2011.

b) Reasons for Judgment by the Honourable Justice Rees.

14.

That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.

15.

That from the date of expiration of the current Apprehended Violence Order against the father for the protection of D, the father is restrained from contacting, communicating with and approaching D and from requesting any other person to approach or communicate with D on his behalf.

16.

That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

NOTATION:

17.

It is intended that K spend time with her father on the Sunday when J and H are spending time with their mother, Ms KK.

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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