GRATTAN & BANCROFT - [2012] FamCA 913

FAMILY COURT OF AUSTRALIA

GRATTAN & BANCROFT

[2012] FamCA 913

FAMILY LAW – CHILDREN – Abuse – Where the children made numerous allegations of physical abuse against the father and his wife resulting in the mother detaining them in her care – Where there was no abuse but rather corporal punishment to discipline the children – Where the children provided inconsistent accounts to school counsellors, police and the Department of Families and Community Services – Where the single expert’s opinion that the maternal family had alienated the children from the paternal family was misconceived and that the children had fabricated the allegations of abuse

FAMILY LAW – CHILDREN – where the children live with the mother – where the children initially spend supervised time with the father and thereafter regular, unsupervised time with him – where the initial period of supervised time will facilitate re-establishment of the children’s relationships with the father – where the presumption of equal shared parental responsibility applied but equal time or substantial and significant time with the father was impracticable – where the father’s choice to not interact with his children for almost a year significantly damaged their relationships with him – where the children expressed a strong desire to live with their mother - where the children made violent threats at the prospect of their return to live with the father

FAMILY LAW – EVIDENCE – Reliability of opinion evidence of the single expert appointed under Chapter 15 of the Family Law Rules 2004 (Cth) – where the Court departed from the recommendations of the single expert – where the Court found the underlying assumptions of the single expert to be unreliable

FAMILY LAW – INJUNCTIONS – Injunction made restraining either party from using corporal punishment on children – no jurisdiction to restrain mother from attending upon her treating therapist

Crimes Act 1900 (NSW) s 61AA

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68B, 67ZC and 114
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Family Law Rules 2004 (Cth)

Bancroft & Grattan [2009] FMCAfam 506
Bostoi & Bostoi [2011] FamCAFC 132
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Knight v R (1988) 35 A Crim R 314
Marriage of L & T (1999) 25 Fam LR 590
McCall v Clark (2009) 41 Fam LR 483
MRR v GR (2010) 240 CLR 461
Slater & Light (2011) 45 Fam LR 41
U v U (2002) 211 CLR 238
Whipp & Richards [2012] FamCAFC 11

APPLICANT:

Ms Grattan

RESPONDENT:

Mr Bancroft

INDEPENDENT CHILDREN’S LAWYER:

Winder Lawyers

FILE NUMBER:

PAC

7060

2007

DATE DELIVERED:

6 November 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

3, 4, 5 & 6 September 2012 and 9 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr I. Duane

SOLICITOR FOR THE APPLICANT:

Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT:

Ms J. McIntosh

SOLICITOR…

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.

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Details

AGLC: GRATTAN & BANCROFT [2012] FamCA 913
Case: [2012] FamCA 913
Decision Date: 6 November 2012

CaseChat Overview and Summary

The case involved a dispute between a mother and father concerning their two children. The children had made numerous allegations of physical abuse against the father and his wife, leading the mother to detain them in her care. The court was required to determine the children's living arrangements and the nature of parental responsibility, considering the allegations of abuse, the children's inconsistent accounts to various authorities, and the father's prior period of non-interaction with his children.

The central legal issues before the court were the welfare of the children, the application of the presumption of equal shared parental responsibility, and the practicalities of implementing time with the father. The court also had to assess the reliability of the opinion evidence provided by a single expert, whose assumptions were found to be unreliable and whose conclusion that the maternal family had alienated the children was deemed misconceived. The court considered the children's strong desire to live with their mother and their expressed violent threats at the prospect of returning to live with the father.

Austin J found that the allegations of abuse were not substantiated, but rather that corporal punishment had been administered for discipline. The court departed from the single expert's recommendations, finding the expert's underlying assumptions to be unreliable. The presumption of equal shared parental responsibility was applied, but equal or substantial and significant time with the father was deemed impracticable due to the father's extended absence and the damage it caused to their relationship. The court ordered that the children live with the mother and established a phased approach to supervised and then unsupervised time with the father, commencing with supervised contact at a family support service. The court also made orders restraining both parties from inflicting corporal punishment and from denigrating each other in the presence of the children.

Orders

Orders of the court

All former parenting orders and injunctions concerning the children B, born … February 2001, and C, born … January 2003, (“the children”) are discharged.

The mother and father shall have equal shared parental responsibility for the children.

The children shall live with the mother.

Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

(a) On three occasions following the date of these orders, not more frequently than weekly, for a period not exceeding two hours on each occasion, at the D Town Family Support Children’s Contact Service (“the Service”), for which purpose:

(i) The parties shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the Service;

(ii) Each party shall comply with all reasonable requests and directions of the Service;

(iii) The father shall pay any costs due to the Service for use of the venue and supervisory services; and

(iv) The dates upon, and the times during, which the children spend time with the father at the Service will be determined by the Service.

(b) Thereafter:

(i) From Friday 7.00 pm until Sunday 8.30 pm on the second, fifth and eighth weekend during each school term;

(ii) For the second week of each New South Wales school holiday period, except the Christmas school holidays, commencing at 5.00 pm on the middle Saturday and ending at 5.00 pm on the last Saturday;

(iii) From 5.00 pm Christmas Day until 5.00 pm Boxing Day each even numbered year;

(iv) From 5.00 pm Christmas Eve until 5.00 pm Christmas Day each odd numbered year; and

(v) For the last two weeks of the New South Wales Christmas school holidays, ending at 5.00 pm on the second last day before the children return to school and commencing at 5.00 pm on the day 14 days prior.

For the purpose of implementing Order 4(a), the mother shall cause the delivery of the children to, and the collection of the children from, the Service at the commencement and conclusion of the time spent by the children with the father.

For the purpose of implementing Order 4(b):

(a) The mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at the McDonald’s Restaurant, D Town, NSW; and

(b) The father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the McDonald’s Restaurant, E Town, NSW.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

(a) The father each Wednesday when the children are living with the mother, between 6.30pm and 7.00pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time;

(b) The mother each Wednesday when the children are spending time with the father, between 6.30pm and 7.00pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time; and

(c) The parent with whom they are not then staying, on the children’s birthdays, between 5.30pm and 6.00pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.

Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

10.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

11.

The mother shall do all things necessary to permit, and the Independent Children’s Lawyer shall do all things necessary so as to provide, explanation to the children of these orders within 7 days of the date of these orders.

12.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13.

Costs are reserved for 28 days.

14.

Any and all other outstanding applications are dismissed.

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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