FAMILY COURT OF AUSTRALIA
| HEMIRO & SINLA | [2009] FamCA 181 |
| FAMILY LAW - CHILDREN - MAGELLAN - allegations of sexual abuse - standard or proof - analysis of article endorsed by Full court in Re W (Sex abuse: Standard of proof) (2004) FLC 93-192 - omission from quoted paragraph - expert evidence - pornography - allegations not proven - no unacceptable risk |
| Family Law Act 1975 (Cth) ss 60B(1), 60CC(2),(3),(4),(4A)), 61DA(2), 62(B), 65DA(2), 65DAA(1), (2) Evidence Act 1995 (Cth) ss 140, 140(2), 141 |
| Hartford and Ansilda [2009] FamCA 23 |
| FATHER: | Mr Hemiro |
| MOTHER: | Ms Sinla |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 9921 | of | 2007 |
| DATE DELIVERED: | 17 March, 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | BROWN J |
| HEARING DATE: | 21, 22, 23, 24, 25, 28, 29 July and 25, 26, 27 and 28 August, 2008 |
REPRESENTATION
| COUNSEL FOR THE FATHER | Mr. Clarke |
| SOLICITOR FOR THE FATHER: | Kennedy Guy |
| COUNSEL FOR THE MOTHER: | Ms. Vohra |
| SOLICITOR FOR THE MOTHER: | Hogg & Reid |
| COUNSEL FOR THE I.C.L. | Mr. Eidelson |
| INDEPENDENT CHILDREN’S LAWYER | Westminster Lawyers |
Orders
That all previous orders and injunctions which relate to the child of the marriage … born … April, 2003 (“the child”) be discharged and the husband be released from the undertaking he gave to the court on 6 September, 2007.
That the wife have sole parental responsibility for the child.
That the child live with the wife.
That subject to any agreement to the contrary between the parties, the child spend time with the husband as follows :
(a)from 10:00 am. until 2:00 pm. on Saturday 21 March, 2009;
(b)from 9:00 am. until 5:00 pm. on Saturday 28 March, 2009;
(c)from 9:00 am. until 5:00 pm. on Sunday 5 April, 2009;
(d)from 9:00 am. on Saturday 11 April, 2009 until 5:00 pm. on Sunday 12 April, 2009;
(e)thereafter, but subject to paragraphs (4)(f) and (g), (5), (6) and (7) hereof, commencing on the first weekend in the second school term in 2009, during school terms, on each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, such time to recommence on the first weekend of each school term;
(f)commencing in 2010, in the first term holiday period as follows :
(i)if Coptic Easter falls within the holiday period and if the child was not with the husband…
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- Hemiro & Sinla [2009] FamCA 181
- Case
- [2009] FamCA 181
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific arrangements for the child's residence, time spent with each parent, and communication between the parents and the child. This included establishing a detailed schedule for the child's time with the husband, encompassing weekends, school holidays, birthdays, and significant holidays like Christmas and Easter, with particular attention to the observance of Coptic Easter. The court also had to address the supervision of the husband's time with the child, restrictions on his involvement in certain personal care activities, and protocols for changeovers between parents.
Brown J's reasoning led to orders that discharged previous arrangements and granted the wife sole parental responsibility, with the child to live with her. The court then meticulously outlined a comprehensive schedule for the child to spend time with the husband, incorporating specific dates and alternating periods, with detailed provisions for holidays and special occasions. Further orders imposed restrictions on the husband's access to the child during changeovers and prohibited him from accessing or exposing the child to pornography. The court also established communication protocols, including telephone calls and written correspondence, and mandated the use of a communication book. Provisions were also made for the husband to obtain school reports and attend school events, with reciprocal restrictions on the wife attending school changeovers unless for specific events. The court also made orders regarding the disclosure of information about the child's health and any counselling or treatment, with specific limitations on the wife's ability to seek such interventions without the husband's consent, except in cases of alleged sexual abuse investigated by authorities.
The final orders discharged all previous orders and injunctions relating to the child, released the husband from his undertaking, and established the wife's sole parental responsibility. The child was ordered to live with the wife, with a detailed schedule for the child to spend time with the husband. Additional orders addressed communication, information sharing, and specific restrictions and liberties for each parent concerning the child's welfare and schooling. The court also directed that a fact sheet be annexed to the orders and made provisions for the return and copying of exhibits.
Orders
Orders of the court
1.
That all previous orders and injunctions which relate to the child of the marriage … born … April, 2003 (“the child”) be discharged and the husband be released from the undertaking he gave to the court on 6 September, 2007.
2.
That the wife have sole parental responsibility for the child.
3.
That the child live with the wife.
4.
That subject to any agreement to the contrary between the parties, the child spend time with the husband as follows :
(a) from 10:00 am. until 2:00 pm. on Saturday 21 March, 2009;
(b) from 9:00 am. until 5:00 pm. on Saturday 28 March, 2009;
(c) from 9:00 am. until 5:00 pm. on Sunday 5 April, 2009;
(d) from 9:00 am. on Saturday 11 April, 2009 until 5:00 pm. on Sunday 12 April, 2009;
(e) thereafter, but subject to paragraphs (4)(f) and (g), (5), (6) and (7) hereof, commencing on the first weekend in the second school term in 2009, during school terms, on each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, such time to recommence on the first weekend of each school term;
(f) commencing in 2010, in the first term holiday period as follows :
(i) if Coptic Easter falls within the holiday period and if the child was not with the husband on Easter Sunday in the preceding year, from 9:00 am. on Holy Thursday until 5:00 pm. on the following Wednesday PROVIDED THAT if the second school term commences prior to that following Wednesday, the period shall commence as many days earlier than Holy Thursday as is necessary to ensure the child spends a week with the husband, concluding at 5:00 pm. on the last day of the holiday period;
(ii) if Coptic Easter falls within the holiday period and if the child was with the husband on Easter Sunday in the preceding year, for a total period of seven days (commencing at 9:00 am. on the first day and concluding at 5:00 pm. on the seventh day) fixed so as to ensure the child is with the wife in the period between Holy Thursday and Easter Monday and, so far as is practicable, to be consecutive days;
(iii) if Coptic Easter does not fall within the holiday period, for seven consecutive days at times to be agreed, commencing at 9:00 am. on the first day and concluding at 5:00 pm. on the seventh day, and failing agreement to commence on the first Saturday of the holiday period.
(g) if Coptic Easter does not fall within a school holiday period, and if :
(i) the child was not with the husband on Easter Sunday in the preceding year; and
(ii) the child would not otherwise be with the husband pursuant to these orders on the weekend which includes Easter Sunday;
then the child shall spend that Easter weekend with the husband in lieu of the following weekend;
(h) if Coptic Easter does not fall within a school holiday period and if :
(i) the child was not with the wife on Easter Sunday in the preceding year; and
(ii) the child would otherwise be with the husband pursuant to these orders on the weekend which includes Easter Sunday;
then the child shall spend that Easter weekend with the wife and spend time with the husband in the following weekend, in lieu.
(i) commencing in 2009, in the second term (June/July) and third term (September) school holidays in each year, from the conclusion of school on the last day of the school term until 5:00 pm. on the second Saturday of the holiday period;
(j) subject to paragraph (8) hereof, from 12:00 noon on 5 January, until 5:00 pm. on 19 January in the 2009/2010 school holiday period and each alternate year thereafter;
(k) from 22 December until 5 January in the 2010/2011 school holiday period and each alternate year thereafter;
(l) if the child would not otherwise spend time with the husband on her birthday :
(i) if the birthday falls on a school day, from the conclusion of school until 6:30 pm.; or
(ii) if the birthday falls on a non-school day for four hours at times to be agreed and, failing agreement, from 10:00 am. until 2:00 pm.;
(m) from 5:00 pm. on Christmas Day (which in these orders means the day which marks the birth of Jesus Christ in the Coptic Church, not Christmas Eve) until 5:00 pm. the following day in January 2011 and each alternate year thereafter; and
(n) at such other times as may be agreed between the parties.
5.
That if the child would not otherwise be with the husband on Fathers’ Day, then she shall spend time with him on that weekend in lieu of the next weekend on which she would otherwise spend time pursuant to these orders.
6.
That if the child would not otherwise be with the wife on Mothers’ Day, then the husband shall spend time with her on the following weekend in lieu of that weekend.
7.
That if the child would not otherwise live with the wife on her (the child’s) birthday, then the child shall spend time with the wife on her birthday for four hours at times to be agreed and, failing agreement, from 10:00 am. until 2:00 pm.
8.
That the child spend time with the wife from 5:00 pm. on Christmas Day until 5:00 pm. the following day in January 2010 and each alternate year thereafter.
9.
That the first three occasions of the husband’s time with the child pursuant to these orders be supervised by his mother, the paternal grandmother, and that she be in substantial attendance during the following three occasions.
10.
That during the first six periods of time with the child the husband be and is hereby restrained from bathing or assisting to bathe the child and from assisting her when she goes to the toilet.
11.
That the husband be and is hereby restrained from attending changeovers save for those which occur at the child’s school until time commences pursuant to paragraph (4)(d) hereof and that during that period the child be delivered and collected by the husband’s mother, the paternal grandmother, or another member of the husband’s family, or a family friend.
12.
That changeovers which occur other than at the child’s school, take place at a place to be agreed between the parties and failing agreement :
(a) the wife deliver the child outside the M Police Station at the commencement of a period of time with the husband; and
(b) the husband (or family member or friend, as provided in paragraph (11) hereof, deliver the child outside the O Police Station at the conclusion of a period of time with the husband.
13.
That subject to any agreement to the contrary between the parties, the child communicate with the husband as follows :
(a) commencing on Thursday 19 March, 2009 by telephone on no less than two days in each week, the telephone call to be made by the husband between 6:00 pm. and 6:30 pm. on each Tuesday and Thursday the child is not in his care; and
(b) by email, provided that the wife be at liberty to read emails from the husband prior to the child accessing them; and
(c) by correspondence sent by ordinary prepaid post, being cards or short notes PROVIDED THAT no more than one item be sent by the husband in any one week.
14.
That the wife keep the husband advised of :
(a) an address to which correspondence may be posted pursuant to these orders;
(b) an email address to which emails for the child can be sent pursuant to these orders; and
(c) a telephone number on which the child can receive phone calls from the husband pursuant to these orders;
and thereafter keep the husband advised of any change of address, email address or telephone number.
15.
That nothing in these orders precludes the paternal grandparents or other members of the husband’s extended family sending cards or small gifts to the child by post (for example, on her birthday, at Christmas and at Easter).
16.
That the wife keep the husband informed of the school at which the child is enrolled and, in the event of change, advise the husband of such change no later than seven days prior to the child’s first day at the new school.
17.
That the husband be at liberty to obtain, at his expense if any:
(a) copies of each school report for the child;
(b) order forms for each school photograph of the child; and
(c) newsletters and other publications routinely provided to parents;
and this order shall stand as authority to the principal of each school attended by the child from time to time to comply with such requests.
18.
That as from 2010, the husband be at liberty to attend events, activities and functions at the child’s school which are routinely attended by parents.
19.
That the wife be and is restrained, by herself, her servants or agents, from attending at the child’s school at the conclusion of a school day on which the husband is to collect the child for time pursuant to these orders or the commencement of a school day on which the husband is to deliver the child pursuant to these orders unless an event, activity or function routinely attended by parents occurs at such time.
20.
That the husband be and is restrained, by himself, his servants or agents, from attending at the child’s school at the commencement or conclusion of a school day save on a day on which he is to collect or deliver the child pursuant to these orders, save (from 2010 on) if an event, activity or function routinely attended by parents occurs at that time.
21.
That as soon as practicable the independent children’s lawyer serve a sealed copy of this order on the principal of S Catholic Primary School in G.
22.
That the wife provide a sealed copy of this order to the principal of each school at which the child is subsequently enrolled by her and such sealed copy be provided on the day on which the child is so enrolled.
23.
That each of the parties forthwith provide to the other, in writing, a telephone number at which he or she can be reached in the event of an emergency involving the child and keep the other advised of any change in that telephone number.
24.
That each of the parties advise the other, as soon as practicable, of any significant illness or injury suffered by the child when in his or her care, including the name of each treating medical practitioner or like professional, and authorise the other to make all relevant enquiries of that medical practitioner or like professional and to discuss the child’s symptoms, treatment and prognosis.
25.
That save with the consent in writing of the husband, the wife be and is hereby restrained from taking the child for any form of counselling, treatment or intervention which relates to the allegation that she has been sexually abused by the husband or is at risk of being sexually abused by the husband, save if directed by :
(a) a person employed by the Department of Human Services involved in the investigation of any subsequent complaint; and
(b) a member of Victoria Police, investigating any subsequent complaint.
26.
That the wife keep the husband advised of the name and address of each psychiatrist, psychologist, medical practitioner, counsellor or like professional consulted by the child in circumstances where the presenting problem or issue is not a medical one (by which is meant an illness, injury or physical medical condition) and authorise each such professional to speak with the husband and discuss the child’s symptoms, treatment and prognosis and without limiting the generality of this order, the husband be at liberty to play such role in any such consultations or treatment as the treating professional deems appropriate.
27.
That the husband be and is hereby restrained from accessing or viewing pornography, in any form, during periods the child is in his care and from allowing the child to be exposed to any form of pornography.
28.
That the parties use a communication book to record matters of importance in relation to the child and that :
(a) such book be transferred between them at changeovers, if it is to be kept in hard copy; or
(b) maintained as an email document to which each “Replies” at the conclusion of a period of time with the child.
29.
That each of the parties by themselves their servants and agents be and are hereby restrained from discussing the evidence adduced in these proceedings and the judgment herein in the presence or hearing of the child.
30.
That a copy of the reasons for judgment herein may be provided to :
(a) Dr. E;
(b) Ms. W;
(c) Ms. R;
(d) the principal of each school attended by the child and, in his/her absolute discretion, any member of staff of that school who works with the child;
(e) any medical practitioner, psychiatrist, psychologist, counsellor or like professional consulted by the child; and
(f) any DHS worker or member of a police force investigating any subsequent allegation against the husband or which involves the child.
31.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
32.
That all extant applications be otherwise dismissed.
IT IS DIRECTED
33.
That these proceedings be removed from the List of matters awaiting finalisation.
34.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
35.
That subject to paragraph (36) hereof, all documents produced pursuant to subpoenae be forthwith returned to the person/entity who/which produced them.
36.
That the wife have leave to copy documents produced pursuant to subpoenae by I Company within fourteen days hereof and such documents then be returned to I Company.
37.
That the DVD tendered as exhibit H-13 be released to the solicitors for the wife to allow a copy to be made by the wife on the undertaking of the wife (given through her solicitor) that within fourteen days hereof she will return the DVD (not the copy taken by her) to her solicitor, and her solicitor is requested to then return the DVD to the solicitors for the husband.
38.
That all other exhibits be returned forthwith to the party in possession at the time of their tender.
39.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
AND THE COURT NOTES its intention that the child spend alternate Easter weekends with each of her parents and paragraphs (4)(e), (f) and (g) should be interpreted and implemented in the light of that intention.
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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