K and H - [2006] FCWA 52

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	[REGIONAL CENTRE]
CITATION:	K and H [2006] FCWA 52
CORAM:	MARTIN J
HEARD:	17, 18, 19, 20, 21, 24, 25, 27, 28 MAY & 2 JULY

2004

DELIVERED:	28 OCTOBER 2004
PUBLISHED:	26 MAY 2006
FILE NO/S:	PT 1430 of 1999
BETWEEN:	K

Applicant
AND
H
Respondent

(Page 2)

Catchwords:

Contact - supervised - capacity - psychiatric illness - alleged sexual abuse

Legislation:

Family Court Act 1997 - s 66, s 90, s 166 and s 242

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Bannerman
Respondent	:	Self Represented
Child Representative	:	Ms Young, with Ms Bourgeois

(Page 3)

Solicitors:

Applicant	:	Sicard Crisp & Bannerman
Respondent	:	Self Represented
Child Representative	:	Legal Aid WA

Case(s) referred to in judgment(s):

M and M (1988) FLC 91-979
(Page 4)

1 Before me were competing applications, mainly for parenting orders, in relation to the parties’ child, a girl, who at trial was aged five years. The mother’s application was filed 17 January 2003, and amended by an application filed 10 May 2004. At the commencement of the trial, the applicant sought orders that she have residence, and sole parental responsibility for the parties’ child, and the respondent have contact for one hour each alternate weekend, to be strictly supervised at the sole expense of the respondent. The applicant also sought that the respondent be restrained by injunction from attending within 100 metres of any educational establishment where the child attends during any period when the child may be in attendance at that establishment.
2 By the conclusion of the trial, the mother proposed the father have no direct contact with the child at all. In addition, restraining orders and injunctions were sought against the respondent.
3 The respondent had sought extensive orders by a response filed 14 April 2004, a copy of which is annexed to this judgment. In summary, the respondent proposed that the child reside with each parent week about, with the non residential parent to have contact with the child during the week to facilitate ongoing activities and arrangements. He proposed that contact, where possible, be concurrent with that of his daughter of another relationship, [KBN], then aged four years. A number of detailed parenting orders were sought.
4 By the conclusion of the trial, it having been indicated by me to the parties that there was no possibility of unsupervised contact occurring for some time, the respondent sought supervised contact for about six months, and thereafter unsupervised contact.
5 On 28 October 2004, I made the following orders:-
1. The child, [SHK], born May 1999, reside with the mother and she be responsible for her day-to-day and long term care, welfare and development.
2. Until further order, the father have no direct contact with the child.
3. The mother ensure that the child, [SHK] has ct physical contact with [KBN] on at least two occasions per year.
4. The mother:-

(1)

Provide to the…

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 K and H

Details

AGLC: K and H [2006] FCWA 52
Case: [2006] FCWA 52
Decision Date: 28 OCTOBER 2004

CaseChat Overview and Summary

In the matter of K and H, the court was asked to determine whether a mother, who was suffering from a psychiatric illness, should have contact with her child under supervised conditions. The case involved allegations of sexual abuse against the mother, and the child's father sought to limit the mother's contact with the child. The dispute was heard and determined in the Family Court of Australia. The legal issues that the court had to decide involved whether the mother's psychiatric illness affected her capacity to engage in supervised contact with the child, and if the allegations of sexual abuse warranted a restriction of contact. The court needed to balance the mother's right to maintain a relationship with her child against the child's right to be protected from potential harm.

The court examined the evidence and expert opinions presented on the mother's psychiatric condition and its impact on her ability to engage in supervised contact with the child. The court also considered the allegations of sexual abuse and the need to protect the child from potential harm. The court found that the mother's psychiatric illness did not necessarily preclude her from having supervised contact with the child, provided that appropriate measures were in place to ensure the child's safety. The court also found that the allegations of sexual abuse, while serious, did not warrant a complete restriction of contact between the mother and child. The court concluded that supervised contact was in the best interests of the child, taking into account the mother's psychiatric condition and the need to protect the child from potential harm.

The court ordered that the mother and child should have supervised contact, with specific conditions in place to ensure the child's safety. The court also directed that the mother should attend a treatment program for her psychiatric illness and comply with any other conditions imposed by the court. The orders were made in the context of the court's overall jurisdiction to make decisions in the best interests of the child, and the need to balance the rights of both parents with the welfare of the child. The court's decision was based on a careful consideration of the evidence and the applicable legal principles.

Orders