HOWARD & LIPSCHITZ - [2013] FamCA 75

FAMILY COURT OF AUSTRALIA

HOWARD & LIPSCHITZ

[2013] FamCA 75

FAMILY LAW – CHILDREN – where the mother and her partner were found to be causing the children significant psychological harm – where the mother and her partner’s allegations about the father’s sexual abuse of the children were not sustained – where the father did not pose an unacceptable risk of sexual harm to the children

FAMILY LAW – CHILDREN – Interim parenting orders – where the children live with the father – where the children spend supervised time with the mother at a contact centre – where a further family report will be prepared to assess the success of the children’s residence with the father – where the mother was restrained from bringing the children into contact with her partner – where the mother had neglected the children’s emotional needs – where the children had not spent time with the father for two years contrary to existing orders – where the mother was the children’s primary carer – where the mother and her partner had aligned the children against the father – where the children referred to the mother’s female partner as “Dad”

FAMILY LAW – CHILDREN – Parental Responsibility – where the relationship between the parties had deteriorated to such an extent that it was in the children’s best interests for the father to have sole parental responsibility for the children - where the presumption of equal shared parental responsibility did not apply due to past family violence – where the mother had not communicated with the father at all for more than two years

FAMILY LAW – CHILDREN – Ancillary Orders – where the mother is restrained from approaching the children at school or at the father’s residence – where the father is given leave to re-list the matter without further notice to the mother and seek an order for recovery of the children in the event of her contravention of the orders

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 62G, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE and 68B
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 16, 36, 38, and 42

Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Johnson v Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Marriage of L & T (1999) 25 Fam LR 590
McCall v Clark (2009) 41 Fam LR 483
McKenzie v McKenzie (1970) 3 All ER 1034
MRR v GR (2010) 240 CLR 461
Napier & Hepburn (2006) FLC 93-303
Potter & Potter (2007) FLC 93-326
RCB v Forrest & Ors (2012) FLC 93-517
U v U (2002) 211 CLR 238

APPLICANT:

Mr Howard

RESPONDENT:

Ms Lipschitz

FILE NUMBER:

NCC

1528

2009

DATE DELIVERED:

20 February 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

18 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R Powe

SOLICITOR FOR THE APPLICANT:

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 [2013] FamCA 75
Case: [2013] FamCA 75
Decision Date: 20 February 2013

CaseChat Overview and Summary

The case of *Howard & Lipschitz* concerned parenting orders made by Austin J in the Family Court of Australia. The dispute arose between the mother and the father regarding the children's living arrangements and parental responsibility. The court was required to determine whether the presumption of equal shared parental responsibility applied, given the deterioration of the parties' relationship and allegations of family violence. Further issues included the children's best interests, particularly in light of psychological harm allegedly caused by the mother and her partner, and the father's alleged sexual abuse of the children, which the court found to be unsubstantiated.

Austin J determined that the presumption of equal shared parental responsibility did not apply due to past family violence and the mother's complete lack of communication with the father for over two years. The court found that the mother and her partner had caused the children significant psychological harm and had aligned the children against the father, who did not pose an unacceptable risk of sexual harm. The court also noted that the children had not spent time with the father for two years, contrary to existing orders, and that the mother had neglected the children's emotional needs.

Consequently, Austin J made interim parenting orders placing the children to live with the father and granting them supervised time with the mother at a contact centre. The mother was restrained from bringing the children into contact with her partner and from approaching the children at school or the father's residence. The father was granted leave to re-list the matter without further notice to the mother and seek an order for recovery of the children in the event of her contravention of the orders. A further family report was to be prepared to assess the success of the children's residence with the father.

Orders