KENT & SHAW - [2010] FamCA 587

FAMILY COURT OF AUSTRALIA

KENT & SHAW

[2010] FamCA 587

FAMILY LAW – CHILD ABUSE – allegations of sexual abuse of the child by the father – where the Court is not satisfied the father has sexually abused the child or that there is an unacceptable risk to the child

FAMILY LAW – CHILDREN – FAMILY VIOLENCE – where the mother alleges the father has been violent towards her and the child has been exposed to this – where the father was convicted of breaching a restraining order obtained by the mother – not satisfied there is a need to make orders to protect the child from violence

FAMILY LAW – CHILDREN – with whom a child spends time – best interests – where the child has not spent any time with the father since allegations of sexual abuse were made in 2007 – where there are concerns regarding the father’s parenting skills – where the mother has exposed the child to her negative views of the father – where the mother’s behaviour has led to the child developing an unreasonable fear of her father – child to live with the mother and spend gradually increasing time with the father – orders for the parties and child to undergo therapy – order for the father to attend a parenting course

FAMILY LAW – CHILDREN – parental responsibility – where the presumption of equal shared parental responsibility in s 61DA does not apply as the father has engaged in family violence – where it is not in the child’s best interests for there to be an order for equal shared parental responsibility – mother to have sole parental responsibility

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA & 65DAA
Evidence Act 1995 (Cth) s 140

Briginshaw v Briginshaw (1938) 60 CLR 336
M and M (1988) FLC 91-979
McCall & Clark (2009) FLC 93-405
N and S and the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Kent

RESPONDENT:

Ms Shaw

INDEPENDENT CHILDREN’S LAWYER:

Ian Charman

FILE NUMBER:

ADC

4329

2007

DATE DELIVERED:

15 July 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

24-26 November 2008
27-29 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bolton and Ms Du Barry

SOLICITOR FOR THE APPLICANT:

Boltons Lawyers

COUNSEL FOR THE RESPONDENT:

Mr McQuade and Mr Stewart

SOLICITOR FOR THE RESPONDENT:

Dixon Gallasch

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ian Charman & Associates

Orders

That all previous orders made in relation to the child M born … May 2002 be discharged.
That the said child live with the mother.
That the mother have sole parental responsibility for the said child.
That the parties engage, and cause the said child to engage, in therapy as follows:
(a)For the mother, to assist in:
(i)Acceptance of the Judgment as it relates to findings about the allegation the father…

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

AGLC: KENT & SHAW [2010] FamCA 587
Case: [2010] FamCA 587
Decision Date: 15 July 2010

CaseChat Overview and Summary

The case involved allegations of sexual abuse of a child by the father, and the mother's claims of family violence. The court was required to determine the best interests of the child, including whether the father had sexually abused the child and whether there was an unacceptable risk of harm to the child from family violence. The court also considered the presumption of equal shared parental responsibility and whether it applied in this case.

Strickland J found that the court was not satisfied that the father had sexually abused the child or that there was an unacceptable risk to the child from family violence. The court noted that the father had been convicted of breaching a restraining order obtained by the mother, but was not satisfied that this necessitated orders to protect the child from violence. The court also considered the child's exposure to the mother's negative views of the father, which had led to the child developing an unreasonable fear of the father.

The court applied the principles outlined in section 60CC of the *Family Law Act 1975* regarding the best interests of the child. It found that the benefit to the child of having a meaningful relationship with both parents was a primary consideration, as was the need to protect the child from harm. The court determined that the presumption of equal shared parental responsibility did not apply due to findings of family violence.

The court ordered that the child live with the mother and have sole parental responsibility. It also ordered that the parties and the child engage in therapy to address the mother's acceptance of the court's findings regarding the abuse allegations, the child's fear of the father, and the father's emotions concerning the accusations. The court made detailed orders for the gradual introduction of the child spending time with the father, commencing with therapy-facilitated introductions and supervised contact, before progressing to unsupervised time. Further orders included provisions for communication between the parties, parental education, and the discharge of the Independent Children's Lawyer after six months.

Orders

Orders of the court

That all previous orders made in relation to the child M born … May 2002 be discharged.

That the said child live with the mother.

That the mother have sole parental responsibility for the said child.

That the parties engage, and cause the said child to engage, in therapy as follows:

(a) For the mother, to assist in:

(i) Acceptance of the Judgment as it relates to findings about the allegation the father has sexually abused the said child;

(ii) The mother’s parenting of the said child in circumstances where:

(1) The said child is being informed that her father did not sexually abuse her;

(2) The said child will be spending time with the father;

(b) For the said child to:

(i) Be informed that her father did not sexually abuse her;

(ii) Support her in having a relationship with her father;

(c) For the father, to assist him in managing his emotions associated with incorrectly being accused of sexually abusing the said child.

That the regime of therapy referred to above be undertaken as follows:

(a) With the mother to commence her therapy as soon as an appointment can be obtained;

(b) After the mother has had two [2] sessions of therapy, the said child to commence her therapy;

(d) The father to commence his therapy as soon as an appointment can be obtained;

(e) The therapy for the father be undertaken by the same therapist as sees the mother and the said child, if possible.

That the therapist or therapists to undertake the therapy referred to above be at the nomination of the Independent Children's Lawyer.

That the father pay the costs associated with the therapy referred to above SAVE AND EXCEPT that after the child commences to spend time with the father the father only pay the costs of therapy for the mother for so long as the mother’s therapist recommends that her therapy in relation to the child spending time with the father continue.

That the Independent Children’s Lawyer provide the therapist or the therapists with a copy of the reasons for judgment delivered today.

That after the said child has undertaken four [4] sessions of therapy (or such other number of sessions as the said child’s therapist deems appropriate AND the said therapist be at liberty to liaise with any separate therapist assisting the father in determining this):

(a) The said child be introduced to the father by the said child’s therapist; or, if the said child’s therapist is unwilling to undertake this, then:

(b) The said child commence spending time with the father at the Y Children’s Contact Service in its supervised Contact Program AND the parties do all such acts and things and sign all such documents to enrol in the said Service.

10.

That after the said child has had four [4] introductory sessions with the father in the presence of the therapist (or such other number of sessions as the said child’s therapist deems appropriate) or after four [4] supervised periods at the Y Children’s Contact Service, the said child spend time with the father:

(a) On one day of each alternate weekend, from 10:00am until 2:30pm;

(b) After four [4] periods pursuant to paragraph (10)(a) herein, on one day each alternate weekend from 10:00am until 5:00pm;

(c) After four [4] periods pursuant to paragraph (10)(b) herein, on each alternate weekend from 10:00am on the Saturday until 5:00pm on the Sunday;

(d) After four [4] periods pursuant to paragraph (10)(c) herein, on each alternate weekend from 6:00pm on the Friday until 6:00pm on the Sunday;

(e) From 3:00pm until 8:00pm on Christmas Day 2010 PROVIDED THAT the said child has completed the four [4] introductory periods pursuant to paragraph (9) and the preamble in paragraph (10) herein.

(f) From 2011:

(i) For one half of each of the short school holidays, and in default of agreement as to which half, for the second half of each such school holiday period;

(ii) For one half of the Christmas school holidays commencing in 2011/2012, and in default of agreement as to which half, for the second half of each such school holiday period;

(iii) From 9:00am on 24 December 2011 until 12 noon on 25 December 2011 and during the same times in each alternate year thereafter;

(iv) From 12 noon on 25 December 2012 until 6:00pm on 26 December 2012 and during the same period in each alternate year thereafter;

(v) On the said child’s birthday, if the birthday is on a school day for two [2] hours from 3:30pm until 5:30pm and if the birthday is not on a school day, from 12 noon until 3:00pm on that day;

(vi) On each Father’s Day from 10:00am until 5:00pm PROVIDED THAT if Mother’s Day falls on a day when the said child would otherwise be spending time with the father, then such period be suspended;

(vii) On the father’s birthday, if the child is attending school, from 3:30pm until 5:30pm, and if the birthday is not on a school day, from 12 noon until 3:00pm on that day.

11.

That after the introductory periods referred to in paragraph (9) and the preamble in paragraph (10) herein, handovers be effected as follows:

(a) At the Y Children’s Contact Service;

(b) On the occasions when the Y Children’s Contact Service is not available, then inside the H Police Station.

12.

That the parties notify one another as soon as practicable in the event that the said child is diagnosed with any serious medical condition or suffers a medical emergency in that party’s care.

13.

That the father be at liberty and the mother do authorise the father to obtain any of the said child’s medical reports and medical information from the said child’s doctor and hospital or any other person who provides the said child with medical care or treatment.

14.

That the father be at liberty to visit the said child if the child is in hospital for treatment for more than twenty-four [24] hours, SAVE AND EXCEPT if the treating medical practitioner’s opinion is that the child is not well enough to spend time with the father.

15.

That the mother:

(a) Notify the father, and keep the father notified, of the schools which the said child attends;

(b) Authorise all such schools as the said child attends to release direct to the father copies of the said child’s school reports;

PROVIDED THAT the father be restrained, and an injunction is hereby granted restraining him, from attending at any school which the said child attends.

16.

That the parties be restrained, and injunctions are hereby granted restraining each of them, from:

(a) Denigrating the other in the presence or hearing of the said child;

(b) Permitting any other person to denigrate the other party in the presence or hearing of the said child;

(c) Removing the said child from the State of South Australia without fourteen [14] days prior written notice to the other party.

17.

That the father be restrained, and an injunction is hereby granted restraining him, from using marijuana for twenty-four [24] hours prior to, and for the duration of, all periods of time he spends with the said child.

18.

That the parties use a communication book.

19.

That both parties attend the “Kids Are First” parenting program within six [6] months of the date of this order AND that each of them provide to the other and to the Independent Children’s Lawyer a certificate confirming that party’s attendance.

20.

That forthwith the father undertake a further parenting course as recommended by the Independent Children’s Lawyer.

21.

That the order for the appointment of the Independent Children’s Lawyer be discharged six [6] months from the date of this order.

22.

That all applications be dismissed and removed from the active pending cases list.

23.

That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Under the provisions of s 60CC, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case, that is:Primary considerations(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))Additional considerations(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;(b)the nature of the relationship of the child with:(i)each of the child’s parents; and(ii)other persons (including any grandparent or other relative of the child);(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i)either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f)the capacity of:(i)each of the child’s parents; and(ii)any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;(h)if the child is an Aboriginal child or a Torres Strait Islander child:(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and(ii)the likely impact any proposed parenting order under this Part will have on that right;(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;(j)any family violence involving the child or a member of the child’s family;(k)any family violence order that applies to the child or a member of the child’s family, if:(i)the order is a final order; or(ii)the making of the order was contested by a person;(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))