Gunasekara and Gemunu - [2018] FCCA 131

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUNASEKARA & GEMUNU

[2018] FCCA 131

Catchwords:
FAMILY LAW – Parenting – competing residence applications – both parents allege children at serious risk of harm if left in the other’s care.

Legislation:

Family Law Act 1975, ss.4AB, 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(2) 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 68L

Family Law Regulations 1984, reg.7
Mental Health Act 2014 (Vic), s.35
Evidence Act 1995 (Cth), s.138

Cases cited:

Bell & Nahos [2016] FamCAFC 244

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Redmond v Redmond [2014] FamCAFC 155
Cobb & Cobb (No.2) [2015] FCCA 2766
Lloyd v Lloyd and Child Representative (2000) FLC 93-045
Bennett v Bennett (1991) FLC 92-191
T v L (2000) FLC 93-056
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Minister for Immigration& Jia Legeng (2001) 205 CLR 507
Waterford & Waterford [2013] FamCA 33
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] HCA 4

Other:
Family Court of Australia and Federal Circuit Court of Australia, Family Violence Best Practice Principles, 4^th edition, December 2016

Applicant:

MR GUNASEKARA

Respondent:

MS GEMUNU

File Number:

DGC 2847 of 2016

Judgment of:

Judge Harland

Hearing dates:

25 – 27 October, 2, 3 & 9 November 2017, and 11, 12 & 13 December 2017

Date of Last Submission:

13 December 2017

Delivered at:

Melbourne

Delivered on:

23 January 2018

REPRESENTATION

The Applicant:

Self-represented

Counsel for the Respondent:

Dr O’Brien

Solicitors for the Respondent:

D & M Lawyers

Counsel for the Independent Children's Lawyer:

Mr Ambrose

Solicitors for the Independent Children's Lawyer:

Madison Branson Lawyers

ORDERS

The mother have sole parental responsibility of X born (omitted) 2004, Y born (omitted) 2009, and Z born (omitted) 2010 (“the children”).
The children live with the mother.
The children spend time and communicate with the father as follows:
(a)For a period of three (3) months, there be no time or communication either directly or indirectly;
then:
(b)By telephone each Sunday, with the mother to facilitate the call between 6:30pm and 7:00pm and the mother be at liberty to monitor these calls;
and:
(c)For a period of three (3) months, on one occasion each week for two (2) hours on Wednesday, or such other day as agreed to by the parties in writing, supervised by a professional supervisor from Family Contact Services, or other professional supervisor as agreed to by the parties in writing, with the costs of supervision to be borne by the father;
then:
(d)Each alternate weekend from after school Friday until before school on Mondays;
(e)On the commencement of paragraph 3(d) herein, for half of all school holiday periods as agreed, but failing agreement, the first half in odd years and the second half in even years, with the children to always be in the care of the mother…

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 Gunasekara and Gemunu

Details

AGLC: Gunasekara and Gemunu [2018] FCCA 131
Case: [2018] FCCA 131
Decision Date: 23 January 2018

CaseChat Overview and Summary

In the matter of *Gunasekara and Gemunu*, heard by Judge Harland, the dispute concerned parenting arrangements for three children, X, Y, and Z. The court was required to determine the primary caregiver for the children, where they would live, and the nature and extent of the father's time and communication with them. Additionally, the court addressed orders preventing the children from leaving the Commonwealth of Australia.

The court's reasoning focused on establishing a parenting regime that prioritised the children's best interests. This involved a phased approach to the father's contact, commencing with a period of no contact, followed by supervised telephone calls, and then gradually increasing supervised face-to-face time. The orders also stipulated specific arrangements for school holidays, birthdays, and handovers, with provisions for the father to bear the costs of supervision. Crucially, the court issued orders restraining the parties and the children from leaving the Commonwealth of Australia until a specified date, with the Australian Federal Police directed to place the children's names on the Watchlist.

The final orders granted the mother sole parental responsibility and determined that the children would live with her. The father's time and communication with the children were to be facilitated through a structured, progressive schedule, including supervised contact and specific holiday arrangements. The court also mandated that the father undertake a Men's Behavioural Change course and provided for the discharge of the Independent Children's Lawyer after six months. The property proceedings were adjourned for a mention hearing.

Orders

Orders of the court

The mother have sole parental responsibility of X born (omitted) 2004, Y born (omitted) 2009, and Z born (omitted) 2010 (“the children”).

The children live with the mother.

The children spend time and communicate with the father as follows:

(a) For a period of three (3) months, there be no time or communication either directly or indirectly;

then:

(b) By telephone each Sunday, with the mother to facilitate the call between 6:30pm and 7:00pm and the mother be at liberty to monitor these calls;

and:

(c) For a period of three (3) months, on one occasion each week for two (2) hours on Wednesday, or such other day as agreed to by the parties in writing, supervised by a professional supervisor from Family Contact Services, or other professional supervisor as agreed to by the parties in writing, with the costs of supervision to be borne by the father;

then:

(d) Each alternate weekend from after school Friday until before school on Mondays;

(e) On the commencement of paragraph 3(d) herein, for half of all school holiday periods as agreed, but failing agreement, the first half in odd years and the second half in even years, with the children to always be in the care of the mother no later than 72 hours prior to the commencement of each school term;

(f) Each Father’s Day from 10:00am until Monday before school;

(g) On the father’s birthday as follows:

(i) If it falls on a week day from 3:30pm until 7:00pm; and

(ii) If it falls on a weekend from 2:00pm until 7:00pm;

(h) On each of the children’s birthday’s as follows:

(i) If it falls on a week day from 3:30pm until 7:00pm; and

(ii) If it falls on a weekend from 2:00pm until 7:00pm.

(i) As otherwise agreed in writing.

The handovers which do not take place at the children’s school take place at (omitted) Shopping Centre, (omitted), or such other place as agreed to by the parties in writing.

The child’s time with the father is suspended:

(a) On Mother’s Day from 10.00am until Monday before school; and

(b) On the mother’s birthday as follows:

(i) If it falls on a week day from 3:30pm until 7:00pm; and

(ii) If it falls on a weekend from 2:00pm until 7:00pm.

The Independent Children’s Lawyer be discharged in six (6) months’ time.

The Independent Children’s Lawyer have liberty to apply at short notice to Judge Harland’s chambers with respect to parenting orders for 6 months.

That within seven (7) days of the Independent Children’s Lawyer recommending a Men’s Behavioural Change course to the father, the father will do all acts and things to necessary to enrol and complete and provide a certificate of completion to the Independent Children’s Lawyer and the mother’s lawyer.

The parties be at liberty to provide a copy of the Family Report by Ms K dated 22 August 2017 and a copy of these reasons to any treating medical practitioner of either party and/or the children.

10.

The Independent Children’s Lawyer provide a copy of these orders to the children’s schools, and a copy of the orders and the reasons to the Department of Health and Human Services.

11.

Each party MR GUNASEKARA born (omitted) 1967 and MS GEMUNU born (omitted) 1972 their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the children X born (omitted) 2004, Y born (omitted) 2009, and Z born (omitted) 2010 (the children”) from the Commonwealth of Australia until 23 January 2021.

12.

That X born (omitted) 2004, Y born (omitted) 2009, and Z born (omitted) 2010 (the children”) be and are hereby restrained from leaving the Commonwealth of Australia.

13.

It is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watchlist or until 23 January 2021.

14.

This order does not prohibit the taking or sending of the children from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 13 of the Family Law Regulations 1984).

Property

15.

The property proceedings be listed for Mention Hearing before Her Honour Judge Williams on 19 April 2018.

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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