JUKES & WOODS - [2012] FMCAfam 862

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUKES & WOODS

[2012] FMCAfam 862

FAMILY LAW – Parenting – discrete issue – time child spends with adult half-brother – unacceptable risk – necessity of supervision.

Evidence Act 1995, s.140
Family Law Act 1975, ss.60CA, 60B(1)(b), 60CC(2)(b)

Amador & Amador (2010) 43 Fam LR 268
Briginshaw v Briginshaw (1938) 60 CLR 336
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
In re G (a minor) [1987] 1 WLR 1461
Johnson & Page (2007) FLC ¶93-344
Leveque v Leveque (1983) 54 BCLR 164
Luther & Luther [2010] FMCAfam 761
M v M (1988) 166 CLR 69
Marriage of M (1987) 11 Fam LR 765
Mazorski v Albright (2008) 37 Fam LR 518
N v S (1995) 19 Fam LR 837
Napier v Hepburn (2007) 36 Fam LR 395; (2006) FLC ¶93-303
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170
Palmer v Dolman [2005] NSWCA 361
Partington (aka Bande) v Cade (No 2) (2010) 42 Fam LR 401
Potter v Potter (2007) 37 Fam LR 208

J. Fogarty, “Unacceptable risk – A return to basics,” (2006) 20 Australian Journal of Family Law 249-295

R. Chisholm, “How to Treat Allegations of Violence and Abuse: Amador & Amador,” (2010) 237 Australian Family Law Bulletin 2-6

Applicant:

MS JUKES

Respondent:

MR WOODS

File Number:

CAC 1733 of 2011

Judgment of:

Neville FM

Hearing date:

30 May 2012

Date of Last Submission:

30 July 2012

Delivered at:

Canberra

Delivered on:

31 August 2012

REPRESENTATION

Solicitor/Advocate for the Applicant:

Ms C Conroy

Solicitors for the Applicant:

Legal Aid NSW (Wagga Wagga)

Solicitors for the Respondent:

Self represented

ORDERS

Until he turns 18 years of age, the child [X] born [in] 2004 (‘the child’) is not to be left alone in the company of his brother Mr C.
During any time the child spends with the Father where his brother

Mr C is present, there must always be an adult in attendance.

IT IS NOTED that publication of this judgment under the pseudonym Jukes & Woods is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 1733 of 2011

MS JUKES

Applicant

And

MR WOODS

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to this proceeding have twice agreed on parenting orders in relation to their son, eight year old [X]. Those consent orders were made by this Court on 27^th February 2012, and again (slightly revised) on a final basis on 30^th May 2012.
According to those orders, [X] lives with his Mother and spends regular, defined time with his Father. Telephone time is also provided for in the orders, and the parents agreed on an order for equal shared parental responsibility. For the purposes of the current matter to be determined it is unnecessary to detail the consent orders further.
There is only one issue on which the parties are divided. That is, whether [X] should be…

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 JUKES & WOODS

Details

AGLC: JUKES & WOODS [2012] FMCAfam 862
Case: [2012] FMCAfam 862
Decision Date

CaseChat Overview and Summary

The matter of Jukes & Woods involves the parents, MS JUKES and MR WOODS, seeking resolution over a discrete issue concerning their son, [X]. The key issue is whether [X] should be permitted to come into contact with his older brother, Mr C, given Mr C's past criminal history of sexual offences. The parents have otherwise agreed on other parenting orders, but this specific issue remains unresolved.

The central legal issue before the court was whether Mr C, the older brother, poses an unacceptable risk to the younger brother, [X], given Mr C's past convictions for sexual offences. The court had to determine whether a 'no contact order' was necessary or if supervised contact could sufficiently protect [X].

The court considered the statutory requirement to protect children from harm and the relevant principles around 'unacceptable risk'. It noted that even though Mr C had expressed remorse, the past conviction indicated some residual risk. The court held that supervised contact could mitigate this risk adequately. Thus, the court ordered that [X] should not be left alone with Mr C and that an adult must always be present when [X] spends time with his father and Mr C is also present.

The final orders of the court are that until [X] turns 18 years of age, he is not to be left alone in the company of his brother Mr C. Additionally, during any time [X] spends with his father where Mr C is present, there must always be an adult in attendance.

Orders