HOWARD & LIPSCHITZ - [2014] FamCA 272

FAMILY COURT OF AUSTRALIA

HOWARD & LIPSCHITZ

[2014] FamCA 272

FAMILY LAW – CHILDREN – Best interests – parental responsibility – with whom the children shall live and spend time – children have meaningful relationships with both parents – mother makes allegations of sexual abuse and neglect by the father – allegations unsubstantiated – children at risk of psychological harm in the care of the mother – presumption of equal shared parental responsibility rebutted – father to have sole parental responsibility – children to remain living with the father – temporary supervision of the children while spending time with the mother

FAMILY LAW – INJUNCTIONS – temporary order restraining the mother from attending the children’s school or residence – mother restrained from allowing the children any contact with her former partner, with whom she still lives

FAMILY LAW – PRACTICE & PROCEDURE – Adjournment – final hearing already delayed on two occasions – the need for finalisation of proceedings is greater than the need for adjournment – application for adjournment dismissed

FAMILY LAW – EVIDENCE – Admissibility – mother made recording of the father without his knowledge and consent – father objected to the admissibility in evidence of both the recording and a transcript of it – breach of State legislation – recording and transcript inadmissible

Evidence Act 1995 (Cth) s 138

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 61DB, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B, 69ZM, 69ZT

Surveillance Devices Act 2007 (NSW) s 12
Telecommunications Act 1997 (Cth)

Howard & Lipschitz [2013] FamCA 75
McKenzie v McKenzie (1970) 3 All ER 1034
Parker v Comptroller-General of Customs (2009) 252 ALR 619

APPLICANT:

Mr Howard

RESPONDENT:

Ms Lipschitz

FILE NUMBER:

NCC

1528

2009

DATE DELIVERED:

30 April 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

31 March & 1 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M. Graham

SOLICITOR FOR THE APPLICANT:

Powe & White Family Lawyers

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

Orders

All former orders relating to the children N, born … 2006, and G, born … 2007, (“the children”) are discharged.
The father shall have sole parental responsibility for the children.
The children shall live with the father.
Each of the parties shall take all reasonable steps to ensure that the children spend time with the mother as follows, or as otherwise agreed in writing:
(a)Up to and including Saturday 2 May 2015, supervised for two hours on the first Saturday of each month;
(b)Thereafter:
(i)On the first weekend of each month, commencing at 5.00 pm on Friday and concluding at 5.00 pm on Sunday;
(ii)From 5.00 pm on Saturday until 5.00 pm on Sunday on the Mother’s Day weekend each year, if that weekend is not the first weekend of the month; and
(iii)For one week each year, commencing at 5.00 pm on the first Friday of January and concluding at 5.00 pm on the following Friday.

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 HOWARD & LIPSCHITZ

Details

AGLC: HOWARD & LIPSCHITZ [2014] FamCA 272
Case: [2014] FamCA 272
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Howard (the applicant father) and Ms Lipschitz (the respondent mother) were involved in parenting proceedings concerning their two children. The dispute centred on with whom the children should live and spend time, particularly in light of allegations of sexual abuse and neglect made by the mother against the father, which were found to be unsubstantiated. The court also considered an application for an adjournment of the final hearing and the admissibility of a covert recording made by the mother.

The primary legal issues before the court were to determine the best interests of the children, including whether the presumption of equal shared parental responsibility applied and, if so, whether it was rebutted. The court was required to decide with whom the children should live and spend time, and whether to grant an injunction restraining the mother from attending the children's school or residence, and from allowing the children contact with her former partner. Additionally, the court had to rule on the admissibility of a recording and transcript made by the mother without the father's consent, and whether to grant the mother's application for an adjournment of the final hearing.

Justice Austin found that the allegations of sexual abuse and neglect made by the mother against the father were unsubstantiated and that the children were at risk of psychological harm in the mother's care. Consequently, the presumption of equal shared parental responsibility was rebutted. The court applied the principles outlined in the *Family Law Act 1975* (Cth) regarding the best interests of the child, including the importance of meaningful relationships with both parents. The court also applied section 138 of the *Evidence Act 1995* (Cth) and section 12 of the *Surveillance Devices Act 2007* (NSW) to rule the covert recording and its transcript inadmissible due to the breach of state legislation. The application for adjournment was dismissed, with the court noting the significant delays already experienced in finalising the proceedings.

The court ordered that the father have sole parental responsibility for the children, and that the children live with the father. The mother was granted supervised time with the children at a contact centre, with the mother to bear the costs. The mother was restrained from attending the children's school or residence, and from allowing the children contact with her former partner. Further orders were made to protect the children from denigration and discussions of past allegations, and to ensure the mother's compliance with reporting obligations to child welfare authorities.

Orders