Harrick and Galea - [2013] FCCA 2027

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRICK & GALEA

[2013] FCCA 2027

Catchwords:
FAMILY LAW ̶ Whether child sexually abused by father ̶ whether children at risk of sexual abuse by father ̶ whether parents should have equal shared parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

W and W (Abuse allegations unacceptable risk) [2005] FamCA 892, [2005] FLC 93¶235
N and S and the Separate Representative (1996) FLC 92-655
M and M [1988] HCA 68; (1988) 166 CLR 69; (1988) FLC 91-979

Applicant:

MS HARRICK

Respondent:

MR GALEA

File Number:

DGC 1471 of 2012

Judgment of:

Judge Phipps

Hearing dates:

5,6,7,8,9 & 12 August 2013

Date of Last Submission:

12 August 2013

Delivered at:

Dandenong

Delivered on:

29 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr Kent-Hughes

Solicitors for the Applicant:

Tyler Tipping & Woods

Counsel for the Respondent:

Mr Grant

Solicitors for the Respondent:

Warren Graham & Murphy

Counsel for the Independent Children’s Lawyer

Ms Brennan

Solicitors for the Independent Children’s Lawyer

O’Halloran Davis

ORDERS

That all previous orders are discharged.
That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2010 and Y born (omitted) 2011.
That the children live with the mother.
That the children spend time and communicate with the father as follows:
(a)Each alternate weekend from 6.00pm Friday until 6.00pm Sunday commencing 6 December 2013;
(b)Commencing with the first school term holidays in 2014 half school term holidays as agreed between the mother and the father and if not agreed the second half;
(c)Commencing with the 2014/2015 summer school holidays on a week about basis so that the children live with the mother during the last week of the school holidays;
(d)For a period of two hours as agreed between the mother and the father on each of the children’s birthdays.
That at Christmas the children shall spend time with each parent as follows:
(a)In the year 2013 and each alternate year thereafter with the mother from 2.00pm on Christmas Eve until 2.00pm Christmas Day and with the father from 2.00pm Christmas Day until 2.00pm Boxing Day;
(b)In the year 2014 and each alternate year thereafter with the father from 2.00pm on Christmas Eve until 2.00pm Christmas Day and with the mother from 2.00pm Christmas Day until 2.00pm Boxing Day.
That commencing with the first school term holidays in 2014 the children’s time with the father pursuant to paragraph 4(a) is suspended during all school term and summer holidays.
That changeover of the children between the parties take place at (omitted) in (omitted).
That the parties maintain a communication book for the purpose of exchanging messages about the children.
That the father is authorised, at his own expense, to obtain copies of school and kindergarten photographs, school reports, newsletters and the like and to attend the school and kindergarten activities normally attended by a parent.
That the mother is restrained by injunction from asking either child questions about the…

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 Harrick and Galea

Details

AGLC: Harrick and Galea [2013] FCCA 2027
Case: [2013] FCCA 2027
Decision Date: 29 November 2013

CaseChat Overview and Summary

This matter concerned an application by the mother and father for final parenting orders in relation to their two children, X and Y. The proceedings were heard by Judge Phipps in the Federal Circuit Court of Australia.

The court was required to determine the terms of final parenting orders, specifically addressing issues of parental responsibility, the children's living arrangements, and the time the children would spend with each parent. The court also considered provisions for communication between the parents regarding the children, arrangements for school holidays and birthdays, and the father's access to school-related information. Further issues included the location for changeovers and an injunction sought by the mother.

Judge Phipps made orders for equal shared parental responsibility for both children. The children were ordered to live with the mother, with specific provisions for the children to spend time and communicate with the father on alternate weekends, during school holidays, and on their birthdays. The court also made detailed arrangements for the children's time with each parent over Christmas on an alternating basis. Provisions were made for the suspension of the father's weekend time during school terms and summer holidays, and for changeovers to occur at a specified location. The court also ordered the parties to maintain a communication book and authorised the father to obtain copies of school-related documents and attend school activities. An injunction was granted restraining the mother from questioning the children about the father's behaviour or recording their statements about him. The order appointing an Independent Children's Lawyer was discharged.

Orders

Orders of the court

That all previous orders are discharged.

That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2010 and Y born (omitted) 2011.

That the children live with the mother.

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

(a) Each alternate weekend from 6.00pm Friday until 6.00pm Sunday commencing 6 December 2013;

(b) Commencing with the first school term holidays in 2014 half school term holidays as agreed between the mother and the father and if not agreed the second half;

(c) Commencing with the 2014/2015 summer school holidays on a week about basis so that the children live with the mother during the last week of the school holidays;

(d) For a period of two hours as agreed between the mother and the father on each of the children’s birthdays.

That at Christmas the children shall spend time with each parent as follows:

(a) In the year 2013 and each alternate year thereafter with the mother from 2.00pm on Christmas Eve until 2.00pm Christmas Day and with the father from 2.00pm Christmas Day until 2.00pm Boxing Day;

(b) In the year 2014 and each alternate year thereafter with the father from 2.00pm on Christmas Eve until 2.00pm Christmas Day and with the mother from 2.00pm Christmas Day until 2.00pm Boxing Day.

That commencing with the first school term holidays in 2014 the children’s time with the father pursuant to paragraph 4(a) is suspended during all school term and summer holidays.

That changeover of the children between the parties take place at (omitted) in (omitted).

That the parties maintain a communication book for the purpose of exchanging messages about the children.

That the father is authorised, at his own expense, to obtain copies of school and kindergarten photographs, school reports, newsletters and the like and to attend the school and kindergarten activities normally attended by a parent.

10.

That the mother is restrained by injunction from asking either child questions about the behaviour of the father during the time the children are spending time with the father and from recording the children by any means at any time the children are making statements about the behaviour of the father.

11.

That the order appointing the Independent Children’s Lawyer is discharged.

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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