Gomez and Easton - [2017] FamCA 31

FAMILY COURT OF AUSTRALIA

GOMEZ & EASTON

[2017] FamCA 31

FAMILY LAW – CHILDREN – Where the mother makes allegations of physical and sexual abuse of the children by the father – Where the mother believes the children have been harmed by the father – Where the mother changed her position to seek unsupervised time between the children and the father despite maintaining a belief that he has intentionally harmed the children and will continue to do so - Where the mother alleges that the father has stalked her, hacked her phone and computer and repeatedly broken into her home and motor vehicle – Where the father denies all allegations made by the mother – Where the mother’s allegations are rejected as groundless – Where the mother poses an unacceptable risk of emotional harm to the children – Where the children are to live with the father and spend supervised time with the mother.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Briginshaw v. Briginshaw (1938) 60 CLR 336
Fardon v Attorney General (Qld) (2004) 210 ALR 50
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
Re: H& Ors (1996) 1 All ER 1
SCVG & KLD Error! Hyperlink reference not valid.

APPLICANT:

Mr Gomez

RESPONDENT:

Ms Easton

INDEPENDENT CHILDREN’S LAWYER:

Sue Duncan

FILE NUMBER:

BRC

5038

2016

DATE DELIVERED:

27 January 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

20, 23 - 24 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bunning

SOLICITOR FOR THE APPLICANT:

Logan Legal Centre

COUNSEL FOR THE RESPONDENT:

Ms Lyons

SOLICITOR FOR THE RESPONDENT:

Keith Mole & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

Mr Gomez (“the father”) shall have sole parental responsibility for B born … 2008 and C born … 2010 (“the children”).
Prior to making any decision about a major long term issue (as that term is defined by s 4 of the Family Law Act 1975 (Cth)) in the exercise of his sole parental responsibility, the father shall inform Ms Easton (“the mother”) of the decision he proposes to make and consider any views expressed by the mother. The father shall then inform the mother of any decision made and provide reasons for his decision.
The children shall live with the father.
The father is authorised by this Order to collect the children from their school today or from such other place as may be agreed in order to give effect to this Order.
The mother is restrained and an injunction hereby issues restraining her from contacting the children’s school or the children prior to the father collecting them today or from arranging or requesting any other person to contact the school or the children on her behalf.
The mother shall do all things necessary to facilitate the transition of the children into…

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 Gomez and Easton

Details

AGLC: Gomez and Easton [2017] FamCA 31
Case: [2017] FamCA 31
Decision Date: 27 January 2017

CaseChat Overview and Summary

In the matter of *Gomez and Easton*, Carew J of the Family Court of Australia made orders concerning the parental responsibility, residence, and contact arrangements for two children, B and C. The dispute involved the father, Mr Gomez, and the mother, Ms Easton, regarding the future care and upbringing of their children.

The court was required to determine issues of parental responsibility, where the children would live, and the nature and extent of the mother's future contact with the children. Additionally, the court considered an application by the mother to change the children's surname.

Carew J ordered that the father have sole parental responsibility for the children, with specific provisions for the father to inform and consider the mother's views on major long-term issues. The children were ordered to live with the father, and the mother was restrained from contacting the children's school or the children directly pending the father collecting them. The mother was also ordered to facilitate the transition of the children into the father's care. Contact between the mother and children was to be supervised at a contact centre, with specific arrangements for initial supervised visits and subsequent fortnightly contact. The mother's application to change the children's surname was dismissed. All extant applications were dismissed, and the Independent Children's Lawyer was discharged. The orders also included provisions for information sharing between the parents regarding the children's health and education, and a fact sheet detailing the obligations and consequences of contravening the orders was attached.

Orders

Orders of the court

Mr Gomez (“the father”) shall have sole parental responsibility for B born … 2008 and C born … 2010 (“the children”).

Prior to making any decision about a major long term issue (as that term is defined by s 4 of the Family Law Act 1975 (Cth)) in the exercise of his sole parental responsibility, the father shall inform Ms Easton (“the mother”) of the decision he proposes to make and consider any views expressed by the mother. The father shall then inform the mother of any decision made and provide reasons for his decision.

The children shall live with the father.

The father is authorised by this Order to collect the children from their school today or from such other place as may be agreed in order to give effect to this Order.

The mother is restrained and an injunction hereby issues restraining her from contacting the children’s school or the children prior to the father collecting them today or from arranging or requesting any other person to contact the school or the children on her behalf.

The mother shall do all things necessary to facilitate the transition of the children into the father’s care.

The children shall spend time with the mother at all such times as may be agreed between the parties and failing agreement as follows:

(a) At D Children’s Contact Centre on Saturday 4 February 2017 for up to two hours;

(b) At D Children’s Contact Centre on Saturday 11 February 2017 for up to two hours;

(d) At D Children’s Contact Centre on Saturday 25 February 2017 for up to three hours;

(e) At D Children’s Contact Centre on Saturday 4 March 2017 for up to four hours;

(f) Thereafter for the maximum time available at the E Town Contact Centre on one occasion each fortnight.

The mother’s time with the children is to be supervised at all times by a person agreed to by the father and mother and failing agreement by an employee of the D Contact Centre for so long as the mother’s time occurs at that Centre and thereafter by a person employed by the E Town Contact Centre.

The father and mother shall forthwith take all steps necessary to attend an intake interview at the E Town Contact Centre and upon the mother’s time with the children commencing at that Centre the father and mother shall each pay one half of the Centre’s costs associated with supervising the mother’s time with the children.

10.

The father shall deliver the children to and collect the children from any Contact Centre or other place where the children are to spend time with the mother.

11.

The father shall keep the mother informed of his residential address, email address and mobile telephone number.

12.

The mother shall keep the father informed of a means of contacting her in case of an emergency relating to the children.

13.

The father shall inform the mother as soon as reasonably practicable of any serious medical condition suffered by the children.

14.

The father shall keep the mother informed of the name and contact details of the children’s doctors and other health care providers and any such person is hereby authorised to provide to the mother any information relating to the their treatment of the children with any cost associated therewith to be borne by the mother.

15.

The father shall keep the mother informed of the name and contact details of the children’s school and the school is hereby authorised to provide to the mother a copy of any school assessments or reports and school photographs with any cost associated therewith to be borne by the mother.

16.

The mother is restrained and an injunction hereby issues restraining the mother from attending the children’s school without the prior written consent of the father.

17.

The mother’s application to change the children’s surname is dismissed.

18.

All extant applications are dismissed.

19.

The Independent Children’s Lawyer is discharged.

20.

In the event that the mother undertakes treatment as recommended by Dr F she is at liberty to provide to that person copies of any reports produced for the purposes of these proceedings together with a copy of this Order and Reasons for Judgment.

21.

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 this Order are set out in the fact sheet attached hereto. These particulars are included in this Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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