HUTCHINSON & HUTCHINSON - [2011] FamCA 27

FAMILY COURT OF AUSTRALIA

HUTCHINSON & HUTCHINSON

[2011] FamCA 27

FAMILY LAW – CHILD ABUSE – Magellan case – allegations of sexual abuse of the children by the father – finding that the father poses an unacceptable risk of sexual abuse to the children – presumption of equal shared parental responsibility rebutted

FAMILY LAW – CHILDREN – Parental responsibility – not a contested issue – parties agree the mother shall have sole parental responsibility

FAMILY LAW – CHILDREN – With whom the children shall live – where the mother is the children’s primary carer – where the children have always lived with the mother – parties agree the children shall continue to live with the mother

FAMILY LAW – CHILDREN – With whom the children shall spend time and communicate – where the father poses an unacceptable risk of sexual abuse to the children – meaningful relationship – where the children’s relationship with the father has deteriorated – where the father poses a risk of family violence to the mother – children to spend supervised time with the father once annually – communication restricted to written communication – mother bears costs of conveying children to annual visits to father

FAMILY LAW – CHILDREN – Relocation – mother sought order permitting relocation phrased in declaratory terms – order in those terms is not a proper exercise of power – relocation of the children is an exercise of the mother’s sole parental responsibility

FAMILY LAW – INJUNCTION – Mother sought an injunction to regulate the father’s behaviour towards her and the children – the orders provide infrequent time spent by children with the father – time spent by children with the father is supervised – mother may seek a family violence order under the relevant State legislation – decline to make injunction

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG(1)(b), 60K, 61B, 61DA, 62G(8), 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68B, 114

A v A (1998) FLC 92-800 at 84,996-84,997
In the Marriage of B and B (1993) FLC 92-357
Goode v Goode (2006) FLC 93-286
H & K [2001] FamCA 687
McKenzie v McKenzie (1970) 3 All ER 1034
M & M (1988) 166 CLR 69 at 76-77
McCall v Clark (2009) FLC 93-405
Moose v Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Napier & Hepburn (2006) FLC 93-303
Potter & Potter (2007) FLC 93-326
U v U (2002) 211 CLR 238
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
WK v SR (1997) FLC 92-787

APPLICANT:

Ms Hutchinson

RESPONDENT:

Mr Hutchinson

INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke, Legal Aid New South Wales

FILE NUMBER:

NCC

1716

2007

DATE DELIVERED:

28 January 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

14, 15, 16 & 17 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamilton

SOLICITOR FOR THE APPLICANT:

Manning Valley Legal and…

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.

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Details

Case: [2011] FamCA 27
Decision Date: 28 January 2011

CaseChat Overview and Summary

In the matter of *Hutchinson & Hutchinson*, Justice Austin of the Family Court of Australia considered parenting orders concerning two children, H and C. The proceedings arose from allegations of sexual abuse of the children by the father, leading to a finding that the father posed an unacceptable risk of sexual abuse to the children.

The court was required to determine the extent of parental responsibility, with whom the children would live, and the nature and extent of any time the children would spend with the father. Additionally, the court considered the mother's application for an order permitting relocation and an injunction to regulate the father's behaviour.

Justice Austin found that the presumption of equal shared parental responsibility was rebutted due to the unacceptable risk posed by the father. The parties agreed that the mother would have sole parental responsibility and that the children would continue to live with her, as she was their primary carer and they had always lived with her. The court declined to make an injunction, noting that the mother could seek a family violence order under relevant state legislation. The court also determined that a relocation order in declaratory terms was not a proper exercise of power, as relocation would fall under the mother's sole parental responsibility.

The court ordered that all former parenting orders be discharged and that the mother have sole parental responsibility. The children were to live with the mother. The father was to spend time with the children for four hours annually, supervised by staff at the Rainbows Contact Service, with the father bearing the costs of the venue and supervision. Communication between the father and children was restricted to written communication, with the father able to send items no more than once per calendar month, and the mother assisting the children in sending communication to the father. The mother was responsible for conveying the children to and from the supervised visits. The parties were restrained from denigrating each other in the presence of the children. Costs were reserved.

Orders

Orders of the court

All former parenting orders relating to the children H, born … May 2001, and C, born … January 2006, (“the children”) are discharged.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that the children spend time with the father for four hours on one occasion annually, to occur on a day during the children’s school holidays at the conclusion of the first school term, commencing at the time nominated by the Rainbows Contact Service at Broadmeadow, NSW (“the Centre”), with such time to be spent at and supervised by staff of the Centre.

For the purpose of implementing Order 4:

(a) Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the Centre.

(b) Each party shall comply with all reasonable requests and directions of the Centre.

(d) The mother shall give the father one month’s notice in writing of the date upon, and the times between, which the children are to spend time with him at the Centre.

(e) The mother shall cause the delivery of the children to, and the collection of the children from, the Centre at the commencement and conclusion of the time spent by the children with the father.

Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

(a) By the father being able to send emails, letters, cards, and/or gifts to the children no more frequently than once per calendar month.

(b) By the mother assisting the children to send to the father any emails, letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.

Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

The mother shall notify the father of any medical emergency, illness or injury suffered by the children warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.

The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

10.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

11.

The parties are restrained from causing or permitting the children to be known by any surname other than “Hutchinson”.

12.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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 Fact Sheet attached hereto and these particulars are included in these orders.

13.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

14.

Costs are reserved for 28 days.

15.

Any and all outstanding applications are dismissed.

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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