Harry and Harry - [2007] FMCAfam 616

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARRY & HARRY

[2007] FMCAfam 616

FAMILY LAW – Parenting orders – interim – allegations of sexual abuse – unacceptable risk – supervision.

Family Law Act 1975, ss.60CC, 69ZT, 69ZV, 100A

W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129
WK v SR (1997) FLC 92-787, 22 FamLR 592
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192
Goode & Goode (2006) FLC 93-286
Vasser & Taylor-Black [2007] FamCA 547

Applicant:

MR HARRY

Respondent:

MS HARRY

File Number:

SYC1928 of 2007

Judgment of:

Altobelli FM

Hearing dates:

20, 26 and 31 July 2007

Date of Last Submission:

31 July 2007

Delivered at:

Wollongong

Delivered on:

17 August 2007

REPRESENTATION

Solicitors for the Applicant:

Ms Escobar

Counsel for the Respondent:

Mr Bell

Independent Children’s Lawyer:

Mr Holmes

ORDERS

I vacate order 3 made by Federal Magistrate Henderson on 13 June 2007.
S is to spend time with her father subject to supervision:
(a)At a supervised Contact Centre; or
(b)By an agreed adult or adults.
S is to spend time with her father twice a week, subject to order 2 above. If the only form of supervision available is at a supervised Contact Centre, the parties are to do all things necessary to complete intake procedures at [N] and Wollongong so that S spends time with the father twice a week and, if necessary in order to implement this order, once a week at each centre. If the parties are able to agree about an adult person to supervise, that can substitute for either one or both of the father’s times with S.
Parties have leave to file in chambers proposed orders appointing a Part 15 Expert in this matter.
In relation to the wife’s application under section 79 of the Family Law Act1975, the husband is to file and serve appropriate pleadings to respond to this, together with a short affidavit in support, within

14 days. Both parties are to file and serve financial statements within

21 days.
The parties be referred for a Conciliation Conference on 2 October 2007 at 11.00 with a Registrar at the Wollongong Registry.
The parties comply with Rule 24.04 of the Federal Magistrates Rules by serving on each other copies of the documents listed in that Rule by no later than 4.00 p.m. on 18 September 2007. Namely:
(a)Copies of 3 most recent taxation returns;
(b)Copies of 3 most recent taxation assessments;
(c)If the party is a member of a superannuation plan:
(i)if not already filed or exchanged – the completed superannuation information form for any superannuation interest of the party;
(ii)for a self-managed superannuation fund- the trust deed and copies of the 3 most recent financial statements for the fund;
(d)If the party has an ABN, copies of the last 4 business activity statements lodged, if any, and:
(e)The 3 most recent financial statements and the last 4 business activity statements of…

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 Harry and Harry

Details

AGLC: Harry and Harry [2007] FMCAfam 616
Case: [2007] FMCAfam 616
Decision Date: 17 August 2007

CaseChat Overview and Summary

The case of Harry and Harry was heard in the Family Court of Australia, where the central dispute revolved around the supervision requirements for a child, S, spending time with her father. The matter was brought before Federal Magistrate Henderson who made certain orders regarding the child's supervised contact with her father. The father sought to overturn some of these orders and also requested modifications to the supervision arrangements. Additionally, the wife filed an application under section 79 of the Family Law Act 1975, seeking a response from the husband.

The court was tasked with determining whether the initial orders made by Federal Magistrate Henderson should be vacated or modified. Specifically, the court had to decide on the appropriate level and method of supervision required for the child's contact with her father. The father argued for a reduction in the frequency of supervision and sought to allow the contact to occur with an agreed adult rather than at a supervised contact centre. The court also needed to address the wife's application under section 79 of the Family Law Act 1975, which required the husband to file appropriate pleadings and financial statements within specified timelines.

In reaching its decision, the court considered the best interests of the child and the safety and welfare concerns associated with the contact. The court found that while the initial orders were necessary, they could be modified to allow for more flexible supervision arrangements, provided they still ensured the child's safety. The court vacated the order that required the child to spend time with her father at a supervised contact centre and allowed for contact to occur either at a supervised contact centre or under the supervision of an agreed adult. Furthermore, the court directed the parties to take necessary steps to facilitate the child's twice-weekly contact with her father. Regarding the wife's application, the court mandated the husband to file responsive pleadings and financial statements within the stipulated timeframes.

The final orders of the court reflect these considerations, vacating certain provisions of the previous order and setting out new guidelines for the child's supervised contact with her father, while also addressing the wife's application under section 79 of the Family Law Act 1975.

Orders

Orders of the court

I vacate order 3 made by Federal Magistrate Henderson on 13 June 2007.

S is to spend time with her father subject to supervision:

(a) At a supervised Contact Centre; or

(b) By an agreed adult or adults.

S is to spend time with her father twice a week, subject to order 2 above. If the only form of supervision available is at a supervised Contact Centre, the parties are to do all things necessary to complete intake procedures at [N] and Wollongong so that S spends time with the father twice a week and, if necessary in order to implement this order, once a week at each centre. If the parties are able to agree about an adult person to supervise, that can substitute for either one or both of the father’s times with S.

Parties have leave to file in chambers proposed orders appointing a Part 15 Expert in this matter.

In relation to the wife’s application under section 79 of the Family Law Act 1975, the husband is to file and serve appropriate pleadings to respond to this, together with a short affidavit in support, within

14 days. Both parties are to file and serve financial statements within

21 days.

The parties be referred for a Conciliation Conference on 2 October 2007 at 11.00 with a Registrar at the Wollongong Registry.

The parties comply with Rule 24.04 of the

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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