Keva & Putra - [2009] FamCA 108

FAMILY COURT OF AUSTRALIA

KEVA & PUTRA

[2009] FamCA 108

FAMILY LAW – CHILD ABUSE – Sexual Abuse – Need for supervised contact – Whether the Court should make a positive finding of abuse – Whether a positive finding of abuse of one child equates to unacceptable risk for another – Appropriateness of close family members acting as supervisors

FAMILY LAW – CHILD ABUSE – Sexual Abuse – Whether kissing a child’s penis is culturally appropriate behaviour in Pacific Islands – Issue determined as not relevant

FAMILY LAW – CHILDREN – Parental responsibility – Family Law Act 1975 (Cth), s 61DA – Time spent with the children – Family Law Act 1975 (Cth), s 65DAA

APPLICANT:

Mr Keva

RESPONDENT:

Ms Putra

FILE NUMBER:

BRC

6312

2007

DATE DELIVERED:

17 February 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

3 - 5 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gardiner of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT:

Bridges Family Law Specialists

COUNSEL FOR THE RESPONDENT:

Mr George of Counsel appeared for the Respondent Mother

SOLICITORS FOR THE RESPONDENT:

Smith & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Hogan of Counsel appeared for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Carter Naughton Rice Family Law

Orders

That the children of the relationship, L born … November 1995 and S born … May 1998 (“the children”), live with the Mother.
That the Mother have the sole responsibility for the long term care, welfare and development of the children.
That each parent be solely responsible for decisions about issues that are not major long term issues in relation to the child without consulting the other, whilst they are in the care of that parent.
That the Father spend time and communicate with the child S at all such times as may be agreed, but failing agreement as follows:
(a)       each alternate weekend on either a Saturday or Sunday (dependent on    the availability of the supervisors) between 9.30 am and 5.00 pm;
(b)       on the child’s birthday, if the child’s birthday falls on a non-school day,            from 11.00 am until 4.00 pm;
(c)       on Christmas Day, from 10.00 am until 4.00 pm, in odd numbered years;
(d)       on Father’s Day, if the child is not spending time with the Father, the     child is to spend time with the Father from 9.30 am until 5.00 pm;
(e)       on Mother’s Day if the child is not spending time with the Mother, the            child shall spend time with the Mother from 9.30 am until 5.00 pm;
(f)       telephone communication at all reasonable times with the Father to      initiate that communication to the Mother’s mobile telephone, and the        Mother to facilitate that communication on each Tuesday and Thursday      between 7.00 pm and 7.30 pm;
(g)       that the child is at liberty to telephone the Father and communicate at any reasonable time and the Mother is to facilitate that telephone communication.
That 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.

Continue reading Keva & Putra

Details

AGLC: Keva & Putra [2009] FamCA 108
Case: [2009] FamCA 108
Decision Date: 17 February 2009

CaseChat Overview and Summary

The case of Keva & Putra involved a dispute between the parents concerning the living arrangements and time spent with their two children, L and S. The matter was heard by Barry J.

The court was required to determine the primary residence of the children, the allocation of decision-making responsibility for their long-term care, welfare, and development, and the specific arrangements for the father's time with each child, including communication and supervision. Further issues included the practicalities of changeovers, access to school and medical information, and provisions regarding parental conduct, such as alcohol consumption, denigration of the other parent, and the discussion of adult issues in the children's presence.

Barry J ordered that the children, L and S, live with the Mother and that she have sole responsibility for their long-term care, welfare, and development. Each parent was granted sole responsibility for day-to-day decisions concerning the children while they were in their respective care. Specific time arrangements were made for the Father to spend time with child S, which were to be supervised by a named individual or an agreed-upon alternative. The Father's time with child L was to be at times agreed between L and the Father. The orders also stipulated detailed provisions for communication, changeovers, and parental conduct, including prohibitions on excessive alcohol consumption, driving under the influence in the children's presence, denigrating the other parent, and discussing adult matters with the children. A Family Consultant was appointed to explain the orders to the children.

Orders

Orders of the court

That the children of the relationship, L born … November 1995 and S born … May 1998 (“the children”), live with the Mother.

That the Mother have the sole responsibility for the long term care, welfare and development of the children.

That each parent be solely responsible for decisions about issues that are not major long term issues in relation to the child without consulting the other, whilst they are in the care of that parent.

That the Father spend time and communicate with the child S at all such times as may be agreed, but failing agreement as follows:

(a) each alternate weekend on either a Saturday or Sunday (dependent on the availability of the supervisors) between 9.30 am and 5.00 pm;

(b) on the child’s birthday, if the child’s birthday falls on a non-school day, from 11.00 am until 4.00 pm;

(d) on Father’s Day, if the child is not spending time with the Father, the child is to spend time with the Father from 9.30 am until 5.00 pm;

(e) on Mother’s Day if the child is not spending time with the Mother, the child shall spend time with the Mother from 9.30 am until 5.00 pm;

(f) telephone communication at all reasonable times with the Father to initiate that communication to the Mother’s mobile telephone, and the Mother to facilitate that communication on each Tuesday and Thursday between 7.00 pm and 7.30 pm;

(g) that the child is at liberty to telephone the Father and communicate at any reasonable time and the Mother is to facilitate that telephone communication.

That the Father spend time with the child L at all such times as agreed between the child and the Father.

That all the time the child S spends with the Father be supervised by N KEVA, Ms K, or such other person as the parties may agree in writing is suitable to act as a supervisor.

For the purposes of all changeovers the Father or his nominee shall pick up the children at the commencement of his time, from the Shell Service Station at G and deliver the children at the end of his time to the Mobil Service Station at M.

That each party is authorised to liaise with the children’s schools and medical practitioners, including any specialists, about their ongoing education and health needs and each parent is authorised to receive copies of any document a parent is entitled to receive including, but not limited to, school reports, school newsletters, school photograph order forms and medical reports.

That each parent informs the other parent, as soon as reasonably practicable, of any serious illness or hospitalisation of the children.

10.

That both parents undertake not to consume alcohol to excess whilst the children are in their care, and that neither parent drive a vehicle under the influence of alcohol whilst the children are present in the vehicle.

11.

That neither parent denigrate or verbally abuse the other parent to or in the presence of the children and take all reasonable steps to remove the children from any party who denigrates or verbally abuses the other parent.

12.

That each parent refrain from discussing adult issues including Court proceedings to or in the presence of the children and will take all reasonable steps to prevent others from doing so in the presence of the children or remove the children from the presence of such discussions.

13.

That the Family Consultant Mr F explain the Court Orders to the two children.

14.

Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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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