FAMILY COURT OF AUSTRALIA
| HELBIG & ROWE | [2015] FamCA 146 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – UNACCEPTABLE RISK – Where the mother made allegations of abuse by the father to a child of the marriage – Where the mother sought orders for sole parental responsibility, that the children live with her and that the time with the father be supervised – Where the Single Expert did not believe that the abuse on balance is likely to have occurred – Where the Single Expert considered that the mother had inappropriately and repeatedly questioned the children about what she considered to be acts of abuse by the father – Where the children are currently living with the father and were reported to be happy with that arrangement – Where there is a risk of the children losing their relationship with the father if they live with the mother – Orders made that the children live with the father – Orders made that the mother have supervised time for a one year period and gradually increasing unsupervised time thereafter. Evidence Act 1995 (Cth) ss 128, 138 |
| Helbig & Rowe [2014] FamCAFC 179 M & M (1998) 166 CLR 69 |
| APPLICANT: | Ms Helbig |
| RESPONDENT: | Mr Rowe |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
INTERVENER | Secretary, Department of Family and Community Services (NSW) |
| FILE NUMBER: | PAC | 5421 | of | 2010 |
| DATE DELIVERED: | 9 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 22 January 2015 to 29 January 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Merkin |
| SOLICITOR FOR THE APPLICANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | Mr O’Sullivan |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | N/A |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke |
| COUNSEL FOR THE INTERVENER | Mr Anderson |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitors Office |
Orders
IT IS ORDERED
That all previous orders are discharged.
That X (“X”) born … 2005 and Y (“Y”) born … 2008 (“the children”) live with their father, Mr Rowe (“the father”).
That the father have sole parental responsibility for the children.
That the father inform Ms Helbig (“the mother”) in writing (including by email or text message) as soon as practical of any specialist medical appointments for either of the children with any medical consultant.
That the father do all acts and things to ensure that the mother is provided with all reports by any such consultant, and in particular with all reports in relation to each specialist review of X’s diabetes, and to authorise the mother’s individual attendance upon such specialists.
That the mother may obtain both oral and written information from the children’s medical specialists and make individual appointments with them to obtain information regarding the children’s medical issues and the father is to ensure that all treating doctors are aware that the mother is so entitled.
That the mother be permitted to provide gifts, letters and cards for the…
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CaseChat Overview and Summary
The central legal issues before the court were whether the mother's allegations of abuse were substantiated to the extent that they posed an unacceptable risk to the children, and consequently, what parenting orders would best serve the children's interests under section 60CC of the *Family Law Act 1975* (Cth). The court also considered the findings of a single expert, who did not believe the abuse was likely to have occurred and noted the mother's repeated questioning of the children about alleged abuse.
Rees J determined that the children were currently living with the father and were happy in that arrangement. The court found a risk of the children losing their relationship with the father if they were to live with the mother. Applying the principles of best interests of the child, the court made orders that the children live with the father and that the father have sole parental responsibility. The mother was granted supervised time with the children for a period of one year, with a gradual increase to unsupervised time thereafter. Further orders addressed communication, medical information, school reports, and injunctions against denigration and discussing proceedings with the children.
Orders
Orders of the court
IT IS ORDERED
1.
That all previous orders are discharged.
2.
That X (“X”) born … 2005 and Y (“Y”) born … 2008 (“the children”) live with their father, Mr Rowe (“the father”).
3.
That the father have sole parental responsibility for the children.
4.
That the father inform Ms Helbig (“the mother”) in writing (including by email or text message) as soon as practical of any specialist medical appointments for either of the children with any medical consultant.
5.
That the father do all acts and things to ensure that the mother is provided with all reports by any such consultant, and in particular with all reports in relation to each specialist review of X’s diabetes, and to authorise the mother’s individual attendance upon such specialists.
6.
That the mother may obtain both oral and written information from the children’s medical specialists and make individual appointments with them to obtain information regarding the children’s medical issues and the father is to ensure that all treating doctors are aware that the mother is so entitled.
7.
That the mother be permitted to provide gifts, letters and cards for the children to the father and that the father is to give the same to the children, subject to the father considering that the gift and/or communication is appropriate.
8.
That the father authorise the staff of any school attended by the children to provide to the mother copies of all of each of the children’s school reports, merit cards and school photographs.
9.
That each parent is to keep the other parent advised in writing of any change of address or telephone contact number no later than 14 days before any proposed change, including the details of their new residential address or new telephone contact number, such notice to be in writing (including by email or text message).
10.
That, for a period of one year from the date of these Orders, the children shall spend time with the mother on one (1) occasion each week for at least two (2) hours (or such longer period as is made available by the supervisor), supervised by PP Family and Counselling Services (“PP”) at a location as agreed between the supervisor and both parents.
11.
That subject to the directions of the Manager of PP, the maternal grandparents may attend the children’s time with the mother pursuant to Order 10, at her invitation.
12.
That each parent shall:
12.1 Comply with any appointments made by PP for supervised contact/changeovers;
12.2 Comply with all reasonable rules of PP; and
12.3 Comply with all reasonable requests or directions of the staff of PP.
13.
That the costs of supervision at PP be paid by the mother.
14.
That commencing on the Saturday immediately following the expiration of one year from the date of these Orders, and for a period of three months thereafter, the children shall spend unsupervised time with the mother each week from 9. 00 am on Saturday morning until 6.00 pm on Saturday evening. Unless the parents agree on an alternate venue, the father or his nominee shall deliver the children to the mother or her nominee outside the premises of PP at the commencement of the time, and the mother or her nominee shall return the children to the father or his nominee at the same place at the conclusion of the time. The maternal grandparents shall not be present for the changeover.
15.
That, subject to Order 17, from the Saturday immediately following the expiration of the period in Order 14, the children shall spend unsupervised time with the mother from 9.00 am on Saturday morning until 6.00 pm on Sunday evening, commencing on that weekend and thereafter each alternate weekend. Unless the parents agree on an alternate venue, the father or his nominee shall deliver the children to the mother or her nominee outside the premises of PP at the commencement of the time, and the mother or her nominee shall return the children to the father or his nominee at the same place at the conclusion of the time. The maternal grandparents shall not be present for the changeover.
16.
That, subject to Order 17, from the second weekend following the period in Order 14, the children shall spend unsupervised time with the mother from Friday afternoon when school finishes until Monday morning when school begins, with the mother or her nominee to collect the children from school and return them to school.
17.
That from the commencement of the school holiday period in December 2016 the children shall spend half of the school holidays with the mother and, in the absence of agreement, the first half in even numbered years commencing with the Christmas 2016 school holidays, and the second half in odd numbered years commencing with the holidays at the end of Term 1 in 2017.
18.
That the children communicate with their mother by telephone every Wednesday at 6.00 pm, such calls to be facilitated by the father telephoning the mother’s landline or mobile telephone number and causing the children to take the telephone call with their mother.
19.
That the father is to engage in at least six (6) sessions of counselling with a counsellor as nominated by the Senior Family Consultant at Child Dispute Services of the Newcastle Registry of the Family Court of Australia to assist him to address issues relating to the children.
20.
That the parents are each restrained by injunction from denigrating the other parent and/or members of the other parent's family to the children, in the presence and/or hearing of the children or at all; and each parent is to remove the children from the presence of any third party denigrating the other parent and/or members of the other parent’s family.
21.
That the parents are each to use their best endeavours to ensure that no other person denigrates the other parent and/or members of the other parent's family to the children or in the presence and/or hearing of the children.
22.
That the parents are each restrained by injunction from discussing these proceedings with or in the presence of the children and from showing to the children any document connected with these proceedings.
23.
That the parents are each restrained by injunction from questioning the children about what occurs in the other parent’s care, including but not limited to questioning in relation to possible sexual abuse in the other parent’s care.
24.
That the father is to facilitate the children meeting with the Manager of Child Dispute Services at the Newcastle Registry of the Family Court of Australia to have the Final Orders explained to them on a date nominated by the aforesaid Manager.
25.
That within 14 days, the mother is to pay into the Trust Account of Legal Aid NSW the sum of $2,640.00 (two thousand six hundred and forty dollars) for payment by Legal Aid NSW to Dr B in respect of the remainder of his fees in relation to his expert witness costs.
26.
That within 14 days, the father is to pay into the Trust Account of Legal Aid NSW the sum of $140.00 (one hundred and forty dollars) for payment by Legal Aid NSW to Dr B in respect of the remainder of his fees in relation to his expert witness costs.
27.
That the mother is restrained from disseminating to any person, body or organization any material or document produced for the purpose of any proceedings under the Family Law Act 1975 (Cth), whether in the Family Court of Australia or in the FCC, including but not limited to any affidavit, report or document produced on subpoena, without the leave of the Court first obtained except for the purpose of obtaining legal advice.
28.
That the Intervener records the single expert reports of Dr B, dated 29 September 2014 and 22 January 2015, and the Judgment in these proceedings on its KIDS System.
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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