Kent & Shaw (No. 3) - [2013] FamCA 475

FAMILY COURT OF AUSTRALIA

KENT & SHAW (NO. 3)

[2013] FamCA 475

FAMILY LAW – ORDERS – contravention – where the father’s application contained a total of two counts – where one of these two counts was dismissed – where the mother admitted the remaining count – where the mother was found not to have a reasonable excuse for the admitted count of contravention – consideration of what orders to make arising out of these findings – existing parenting orders varied pursuant to s 70NBA of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) ss 60CC, 70NBA, 70NCA, 70NCB, 70NDA, 70NDB, 70NDC

Sandler & Kerrington [2007] FamCA 479 (24 May 2007)
Irvin & Carr [2007] FamCA 492 (29 May 2007)
Spencer & Verity [2013] FamCAFC 210 (14 December 2012)
Kent & Shaw [2013] FamCA 38 (4 February 2013)
Kent & Shaw (No. 2) [2013] FamCA 238 (16 April 2013)

APPLICANT:

Mr Kent

RESPONDENT:

Ms Shaw

FILE NUMBER:

ADC

4329

2007

DATE DELIVERED:

21 June 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

17 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In person

Orders

Paragraphs (4) to (11) of the Orders of Justice Strickland dated 15 July 2010 are discharged.
The parties engage in, and cause M born … May 2002 to engage in, therapy as follows:
(a)       for the mother, to assist in:
(i)acceptance of the Judgment of the Honourable Justice Strickland dated 15 July 2010 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 in:
(1)managing his emotions associated with incorrectly being accused of sexually abusing the said child.
The therapist to undertake the therapy referred to above to be Ms C.
The regime of therapy referred to above be undertaken as follows:
(a)with the mother to commence her therapy from 3 September 2013, (on which date an appointment has already been arranged);
(b)with the child to continue her therapy with Ms C as soon as an appointment can be obtained by the mother;
(c)with the father to commence his therapy with Ms C as soon as an appointment can be obtained by the father.
The mother pay the costs associated with the therapy referred to above as it relates to the mother and the child.
The father pay the costs associated with the therapy referred to above as it relates to the father and to the joint therapy between the father and the child as referred to below at paragraph (9)(a)…

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 Kent & Shaw (No. 3)

Details

AGLC: KENT & SHAW (NO. 3) [2013] FamCA 475
Case: [2013] FamCA 475
Decision Date: 21 June 2013

CaseChat Overview and Summary

This matter came before Dawe J concerning a dispute between a mother and father regarding their child, M. The proceedings involved allegations of sexual abuse by the father against M, which had previously been the subject of findings by Justice Strickland. The court was tasked with determining the appropriate orders for therapy and the future parenting arrangements for M.

The central legal issues before the court were: first, the extent to which previous orders regarding the allegations of sexual abuse should be discharged or modified; second, the nature and purpose of therapeutic interventions required for the mother, the child M, and the father; and third, the specific regime for supervised and unsupervised time between M and her father, including the method of handover. The court also had to determine the allocation of costs for the proposed therapy.

Dawe J discharged paragraphs (4) to (11) of Justice Strickland's previous orders. The court then made detailed orders for therapy for the mother, M, and the father, with specific objectives for each. The mother was ordered to accept Justice Strickland's findings regarding the abuse allegations and to parent M in circumstances where M would be informed that the father did not sexually abuse her and would be spending time with him. M was to be informed of this fact and supported in her relationship with her father. The father was to receive therapy to manage emotions related to the accusations. Ms C was appointed as the therapist, and the court set out a phased approach to M spending time with her father, commencing with introductions by Ms C or supervised contact at the Y Contact Centre, and gradually increasing the duration and frequency of time spent together. The court also specified handover arrangements and allocated costs for the therapy. The matter was adjourned for mention.

Orders

Orders of the court

Paragraphs (4) to (11) of the Orders of Justice Strickland dated 15 July 2010 are discharged.

The parties engage in, and cause M born … May 2002 to engage in, therapy as follows:

(a) for the mother, to assist in:

(i) acceptance of the Judgment of the Honourable Justice Strickland dated 15 July 2010 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;

(1) managing his emotions associated with incorrectly being accused of sexually abusing the said child.

The therapist to undertake the therapy referred to above to be Ms C.

The regime of therapy referred to above be undertaken as follows:

(a) with the mother to commence her therapy from 3 September 2013, (on which date an appointment has already been arranged);

(b) with the child to continue her therapy with Ms C as soon as an appointment can be obtained by the mother;

The mother pay the costs associated with the therapy referred to above as it relates to the mother and the child.

The father pay the costs associated with the therapy referred to above as it relates to the father and to the joint therapy between the father and the child as referred to below at paragraph (9)(a) and the preamble in paragraph (10).

The mother provide Ms C with a copy of the reasons for judgment delivered today.

The father be permitted to provide any material from these proceedings that is relevant to the health, safety or welfare of the child to Ms C.

After the said child has undertaken such number of sessions with Ms C as Ms C deems appropriate:

(a) the said child be introduced to the father by Ms C; or if Ms C is unwilling to undertake this, then:

(b) the said child commence spending time with the father at the Y Contact Centre AND the parties do all such acts and things and sign all documents to enrol in the said service.

10.

After the said child has had four [4] introductory sessions with the father in the presence of Ms C (or such other number of sessions as Ms C deems appropriate) or after four [4] supervised periods at the Y Contact Centre, the said child spend time with the father:

(a) on one [1] day of each alternate weekend, from 10:00 am until 2:30 pm;

(b) after four [4] periods pursuant to paragraph (10)(a) herein, on one [1] day each alternate weekend from 10:00 am until 5:00 pm;

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

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

(e) from 3:00 pm until 8:00 pm on Christmas Day 2013 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 2014 PROVIDED THAT the said child has completed the periods pursuant to paragraphs (9) and (10) (a) to (d):

(i) on each alternate weekend from 6:00 pm on the Friday until 6:00 pm on the Sunday;

(ii) 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;

(iii) for one half of the Christmas school holidays period commencing in 2014/2015, and in default of agreement as to which half, for the second half of each such school holiday period;

(iv) from 9:00 am on 24 December 2014 until 12 noon on 25 December 2014 and during the same times in each alternate year thereafter;

(v) from 12 noon on 25 December 2015 until 6:00 pm on 26 December 2015 and during the same period in each alternate year thereafter;

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

(vii) on each Father’s Day from 10:00 am until 5:00 pm 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;

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

11.

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 Contact Centre;

(b) on the occasions when the Y Contact Centre is not available, then inside the Suburb L Police Station.

12.

The matter is adjourned to Tuesday 10 December 2013 at 9.15 am for mention before the Honourable Justice Dawe.

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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