Isles and Spurr - [2012] FamCA 22

FAMILY COURT OF AUSTRALIA

ISLES & SPURR

[2012] FamCA 22

FAMILY LAW – CHILDREN - Parenting dispute - Serious allegations of sexual abuse, child pornography possession and inappropriate adult sexual behaviour - No unacceptable risk.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Cotton and Cotton (1983) FLC 91-330
Edington and Edington (No 2) [2007] FamCA 1299; (2007) FLC 93-349

APPLICANT:

Mr Isles

RESPONDENT:

Ms Spurr

FILE NUMBER:

LNC

400

2009

DATE DELIVERED:

17 January 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Launceston

JUDGMENT OF:

Cronin J

HEARING DATE:

21, 22, 23, 24 & 25 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fitzgerald

SOLICITOR FOR THE APPLICANT:

Legal Aid Commission of Tasmania

COUNSEL FOR THE RESPONDENT:

Mr Copley SC

SOLICITOR FOR THE RESPONDENT:

Couper Geysen – Family and Animal Law

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Mooney

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

McVeity & Associates

Orders

That the mother and the father have equal shared parental responsibility for the child of their relationship M.
That the child live with the mother at all times other than those with the father as set out hereafter.
That the child live with the father as follows:
(a)until 8 April 2012, from 4 pm on Friday until 4 pm on the following Sunday in each alternate weekend;
(b)from the next weekend in the cycle after 8 April 2012, from 4 pm on the Friday until 9 am on the following Monday morning in each alternate weekend;
(c)for one half of all school term holidays commencing at the end of the first school term in 2013 by agreement and failing agreement, the first half in odd-numbered years and the second half in even-numbered years;
(d)until the school long summer holidays commencing in or around December 2015, for a week-about arrangement during the long summer school holidays which shall not include the period 24 to 26 December;
(e)for the long summer holidays commencing in December 2015 and thereafter, for one half of the holidays by agreement and failing agreement, the first half in odd-numbered years and the second half in even-numbered years save that the period from 24 to 26 December shall not be included;
(f)during each Christmas period commencing December 2012, from 9 am on 24 December 2012 until midday on 25 December and for a similar period in each alternate year thereafter and from 12 midday on 25 December 2013 until 6 pm on 26 December 2013 and for a similar period in each alternate year thereafter.
That all weekend and weekday time shall be suspended during school holidays once the child commences school or kindergarten and shall resume when the terms resume as if the orders had not been so suspended.
Save when the child commences school, all handover points for the child for the purposes of these orders shall be a contact centre nearest the residence of the mother and notwithstanding the times set out in these orders, the handover time shall be as close as…

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 Isles and Spurr

Details

AGLC: Isles and Spurr [2012] FamCA 22
Case: [2012] FamCA 22
Decision Date: 17 January 2012

CaseChat Overview and Summary

In this matter before Cronin J, the parties were the mother and the father of a child named M. The dispute concerned arrangements for the child's upbringing and welfare, particularly in light of concerns raised by the mother's family regarding alleged sexual abuse by the father. The Department of Health and Human Services had investigated these concerns but ultimately closed its file, finding no role for itself.

The court was required to determine the appropriate orders for parental responsibility, living arrangements, and contact between the child and each parent. Additionally, the court needed to address injunctions to prevent denigration of a parent, the use of physical discipline, and specific restrictions on medical examinations related to alleged sexual abuse. The court also considered the role and discharge of the Independent Children’s Lawyer and the inclusion of a fact sheet detailing the obligations and consequences of contravening the orders.

Cronin J applied the principles of the *Family Law Act 1975* (Cth) concerning equal shared parental responsibility and the best interests of the child. The court found that while the maternal grandmother had raised concerns about sexual abuse, the medical evidence ultimately pointed to a urinary tract infection, which the grandmother appeared to reject as a natural bodily function. The court noted that the mother herself did not raise concerns with the Department. Consequently, the court made orders for equal shared parental responsibility, with the child to live with the mother and spend significant time with the father, detailing specific arrangements for weekends, school holidays, and Christmas periods. Injunctions were granted to prevent denigration and physical discipline, and specific notice requirements were imposed for medical consultations concerning alleged sexual abuse. The Independent Children’s Lawyer was discharged, and a fact sheet was to be attached to the orders.

Orders

Orders of the court

That the mother and the father have equal shared parental responsibility for the child of their relationship M.

That the child live with the mother at all times other than those with the father as set out hereafter.

That the child live with the father as follows:

(a) until 8 April 2012, from 4 pm on Friday until 4 pm on the following Sunday in each alternate weekend;

(b) from the next weekend in the cycle after 8 April 2012, from 4 pm on the Friday until 9 am on the following Monday morning in each alternate weekend;

(c) for one half of all school term holidays commencing at the end of the first school term in 2013 by agreement and failing agreement, the first half in odd-numbered years and the second half in even-numbered years;

(d) until the school long summer holidays commencing in or around December 2015, for a week-about arrangement during the long summer school holidays which shall not include the period 24 to 26 December;

(e) for the long summer holidays commencing in December 2015 and thereafter, for one half of the holidays by agreement and failing agreement, the first half in odd-numbered years and the second half in even-numbered years save that the period from 24 to 26 December shall not be included;

(f) during each Christmas period commencing December 2012, from 9 am on 24 December 2012 until midday on 25 December and for a similar period in each alternate year thereafter and from 12 midday on 25 December 2013 until 6 pm on 26 December 2013 and for a similar period in each alternate year thereafter.

That all weekend and weekday time shall be suspended during school holidays once the child commences school or kindergarten and shall resume when the terms resume as if the orders had not been so suspended.

Save when the child commences school, all handover points for the child for the purposes of these orders shall be a contact centre nearest the residence of the mother and notwithstanding the times set out in these orders, the handover time shall be as close as that so set out as can be accommodated by the contact centre. When schooling begins, the handover shall wherever possible be the school.

That the Independent Children’s Lawyer be discharged from the proceedings from 30 November 2012.

Each of the mother and the father is restrained by injunction from denigrating or criticising the other parent to or in the presence of the child or from permitting the child to remain in the presence of any person so doing.

Each of the mother and the father is restrained by injunction from applying physical discipline to the child.

The mother is restrained by injunction from taking M (or permitting any other person in her place) to any health professional associated with or concerned about issues of sexual abuse of M without first giving notice to the father and the office of child protection of the Department of Health and Human Services.

10.

That until 31 December 2012, the mother is hereby restrained by injunction from leaving the child alone in the care of the maternal grandparents or either of them.

11.

That the Independent Children’s Lawyer provide a copy of these orders and the reasons for judgment this day to the relevant officer of the Department of Health and Human Services.

12.

That all extant applications be otherwise dismissed.

13.

That pursuant to s.65DA(2) and s.62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As the Department saw no role for itself however, its file was closed. That unleashed a plethora of concerns from the mother’s family and what were described as “notifications”. The Department undertook a careful investigation, but its focus turned to the mother or more particularly, the maternal grandmother. Again, having heard all of the evidence and had it tested, I can understand why.THE EVIDENCE OF Ms R Ms R is the Team Leader of the Child Protection Service of the Department in Town 1. She was called as a witness by the Independent Children’s Lawyer. I carefully observed Ms R. She was a calm and authoritative witness. She did not appear to have any ulterior agenda. I found her objective. Having regard to what Ms R has personally been through in these proceedings, she could understandably have been frustrated. She has been the subject of questions by the relevant Ministers of the Tasmanian Government to which she calmly and professionally responded. She pursued investigative leads appropriately. She answered questions from all Counsel and it was clear that she knew this case extremely well. Having said that, Ms R was of the view that there had been too many attendances of M upon doctors for examination. The evidence of the general practitioner does not bear that out. There can be no doubt that there were monthly visits by M but it was with the maternal grandmother where the subject of sexual abuse was discussed. Much of that concern however related to the maternal grandmother’s complaints to the doctor of lack of action by the authorities and her own rejection of medical opinion. The ultimate diagnosis of what seemed to be the basis for the maternal grandmother’s accusation of sexual impropriety on the part of the father was a urinary tract infection. The pursuit of the urinary tract infection justified the visits by M to the doctor. However, the maternal grandmother seemed to reject the medical explanation of it being a natural bodily function or as the general practitioner described it, a hormonal issue. It was not the examinations that were of concern but the fact that the maternal grandmother kept raising the subject of the sexual abuse in the presence of M. Ms R acknowledged that there could be no concern if the visits had simply related to the urinary tract infection. When succinctly asked whether she had any concerns about the mother, Ms R said she did not. The departmental spotlight was clearly on the maternal grandmother. Ms R was questioned about the mother’s behaviour in being rude to departmental officers. As an indication of her professionalism, she accepted that people struggling with these sorts of problems (and dare I say unsophisticated people) were often upset with the department workers who were charged with an onerous responsibility. I commend her for that approach because the evidence was led by the father as an indication of the mother’s attitude to the investigations and to people in responsible positions. Most right-thinking people would have been insulted and offended by the mother’s conduct but Ms R took it in her stride.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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