Harkiss and Beamish

Case [2011] FMCAfam 927


FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARKISS & BEAMISH [2011] FMCAfam 927
FAMILY LAW – Parenting – allegations of unacceptable risk of abuse – allegation of psychological risk to child – issues with Expert evidence.
Evidence Act 1995, s.140
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64, 65DAA, 67N
Federal Magistrates Court Rules 2001, r.15.09
B and B [Access] (1986) FLC 91-758
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Briginshaw v Briginshaw (1938) 60 CLR 336
Brown and Pedersen (1992) FLC ¶92-271
Leveque v Leveque (1983) 54 BCLR 164
M and M (1987) 11 FamLR 765
McKee v McKee (1951) AC 352
MRR v GR [2010] HCA 4
N and S and the Separate Representative (1996) FLC 92-655
Re G (a minor) (1987) 1 WLR 1461
Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768
Reynolds v Reynolds (1973) 47 ALJR. 499
S v S [1993] NZFLR 657
TF and JF and Children’s Representative [2005] FamCA 394
V and V [2004] FamCA 1081
W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892
WK v SR (1997) 22 FamLR 592
Applicant: MR HARKISS
Respondent: MS BEAMISH
File Number: WOC 553 of 2010
Judgment of: Altobelli FM
Hearing dates: 24-27 May 2011 & 8-9 August 2011
Date of Last Submission: 9 August 2011
Delivered at: Sydney
Delivered on: 6 October 2011

REPRESENTATION

Counsel for the Applicant: Mr Steward
Solicitors for the Applicant: R & M Legal Solicitors & Attorneys
Counsel for the Respondent: Mr Millar
Solicitors for the Respondent: Dobinson Davey Clifford Simpson
Counsel for the Independent Children’s Lawyer: Mr Maurice
Solicitors for the Respondent: Williamson Isabella Lawyers & Public Notaries

ORDERS

  1. That the parents have equal shared parental responsibility for making decisions about the long term care, welfare and development of the Child [X] born [in] 2008.

  2. That the Child lives with the Mother.

  3. That within 48 hours of receiving his work roster, the Father is to nominate to the Mother in writing by email (to an email address that the Mother is to nominate within 7 days of the date of these orders) the dates on which he proposes to spend time with the Child pursuant to these orders.  If, for any reason, the Father becomes unavailable to spend time with the Child pursuant to his nomination under this order, he must inform the Mother by email or SMS message as soon as possible after he becomes aware of his unavailability.

  4. That the Father is to spend time with the Child as follows:

    (a)For four visits after the commencement of these orders, for four hours each visit, not more than once per week;

    (b)For a further four visits thereafter, for six hours each visit, not more than once per week;

    (c)Until 3 December 2012, for eight hours each visit, not more than once per week;

    (d)From 3 December 2012, for two days and one overnight weekly, commencing at 9:00am on Day…

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AGLC
Harkiss and Beamish [2011] FMCAfam 927
Case
[2011] FMCAfam 927
Decision Date

CaseChat Overview and Summary

Harkiss and Beamish involved a dispute between the parents of a child, X, concerning the arrangements for their daughter's care, welfare, and development post-separation. The matter was heard and determined in the Family Court of Australia. The primary focus of the case was on establishing a parenting plan that would facilitate both parents' meaningful involvement in the child's life while ensuring her stability and well-being.

The court was tasked with determining the allocation of parental responsibility, the residence of the child, and the specifics of the time-sharing arrangements between the parents. This included deciding on the frequency and duration of visits, special occasion visitations, and the logistics of changeovers. Additionally, the court addressed the need for communication between the child and both parents, the use of a communication book, and the requirement for the parents to participate in post-separation parenting assessments and therapy.

The court concluded that equal shared parental responsibility was in the best interest of the child, ensuring both parents had a say in significant decisions regarding the child's welfare. It was determined that the child should live with her mother but would have substantial time with her father, with the visitation schedule evolving as the child grows older. The court detailed a comprehensive schedule for the father's time with the child, including specific times for regular visits, special occasions, and school holidays. The logistics of changeovers were also meticulously outlined, with a preference for supervised contact centres and, in their absence, neutral locations such as McDonald's restaurants. The court mandated ongoing communication between the child and both parents and the use of a communication book and a dedicated email address for parental communication.

The final orders included provisions for the father to notify the mother promptly of any changes to his availability, the mother to continue her treatment for depression and post-traumatic stress disorder, and both parents to refrain from speaking negatively about each other in the child's presence. The parents were also required to participate in post-separation parenting assessments and any recommended programs. Future applications between the parents were to be listed before a specific magistrate, with provisions for that magistrate to disqualify himself if necessary.

Orders

Orders of the court

1.

That the parents have equal shared parental responsibility for making decisions about the long term care, welfare and development of the Child [X] born [in] 2008.

2.

That the Child lives with the Mother.

3.

That within 48 hours of receiving his work roster, the Father is to nominate to the Mother in writing by email (to an email address that the Mother is to nominate within 7 days of the date of these orders) the dates on which he proposes to spend time with the Child pursuant to these orders. If, for any reason, the Father becomes unavailable to spend time with the Child pursuant to his nomination under this order, he must inform the Mother by email or SMS message as soon as possible after he becomes aware of his unavailability.

4.

That the Father is to spend time with the Child as follows:

(a) For four visits after the commencement of these orders, for four hours each visit, not more than once per week;

(b) For a further four visits thereafter, for six hours each visit, not more than once per week;

(c) Until 3 December 2012, for eight hours each visit, not more than once per week;

(d) From 3 December 2012, for two days and one overnight weekly, commencing at 9:00am on Day 1 and concluding at 5:00pm on Day 2;

(e) From the first weekend after the Child commences school, from after school on Friday to before school on Monday, and each alternate weekend thereafter.

5.

That the Father spends time with [X] on special occasions and during school holidays as follows:

(a) Commencing December 2011:

(i) From 9:00am on Christmas Eve until midday on Christmas Day in even-numbered years;

(ii) From midday on Christmas Day until 5:00pm on Boxing Day in odd-numbered years.

(b) Commencing Easter 2013:

(i) From 9:00am on Good Friday until 5:00pm on Easter Saturday in even-numbered years;

(ii) From 9:00am on Easter Sunday until 5:00pm on Easter Monday in odd-numbered years.

(c) On the Child’s birthday ([date omitted]):

(i) If it falls on a school day, from 4:00pm to 6:00pm that night; and

(ii) If it does not fall on a school day, from 9:00am until 1:00pm in even-numbered years and from 1:00pm to 4:00pm in odd-numbered years.

(d) From December 2012, during school holiday periods, for one period of two days and one night commencing at 10:00am on Day 1 and concluding at 5:00pm on Day 2; and

(e) From December 2014 during school holidays periods, for one half of each school holiday period, provided that during the December/January school holidays the period is not to be taken in blocks longer than seven days and seven nights.

6.

That until the Child commences school, the Father is entitled to spend time with her even though it may fall on a day coinciding with preschool, but the Father is required to consider the benefits of the Child attending preschool, as well as continuing to attend her scheduled activities during her time with him.

7.

That changeover is to take place as follows:

(a) A supervised contact centre is to be used where it is available.

(b) Where such a service is not available, the parents are to agree to a neutral changeover place, and if the parents are unable to agree, changeover will take place at the McDonalds family restaurant closest to the Mother if the Father is to collect the Child, and the McDonalds family restaurant closest to the Father if the Mother is to collect the Child.

(c) Until 3 December 2012 the Father is responsible for the collection and return of the Child from a supervised contact centre, or the McDonalds family restaurant closest to the Mother.

(d) From 3 December 2012 the Father will be responsible for collecting the Child from the McDonalds family restaurant closest to the Mother at the commencement of contact, and the Mother is responsible for collecting the Child from the McDonalds family restaurant closest to the Father at the conclusion of contact.

8.

That both parents do all things necessary to facilitate telephone communication between the Child and the Father:

(a) Between 6:30pm and 8:30pm on any day;

(b) At any time in an emergency;

(c) At any reasonable request by the Child.

9.

That both parents do all things necessary to facilitate telephone communication between the Child and the Mother at any time as requested by the Child.

10.

That the parents are to use a communication book for the purposes of transmitting information to each other in relation to the Child. The parents are also to forthwith establish an email address that they can use specifically and only for the purposes of communicating in relation to the Child and keeping the other fully informed about matters relating to her.

11.

That the parties must within 14 days contact Relationships Australia on (02) 4221 2000 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.

(a) In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.

(b) Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.

(c) If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.

(d) The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.

12.

That the mother is to continue to seek treatment from her doctors and psychiatrists in relation to her depression and post traumatic stress disorder, and to strictly abide by the advice given to her in relation to medication and therapy.

13.

That both parents are restrained from:

(a) Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child.

(b) Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Child or permitting any other person to do so.

14.

That any future application between the parents relating to the Child shall first be listed before Federal Magistrate Altobelli, if he is reasonably available, without precluding either parent from applying for Federal Magistrate Altobelli to disqualify himself from hearing the application.

15.

That the parents have liberty to apply before Federal Magistrate Altobelli in relation to the interpretation and implementation of these orders.

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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