KHOO & PRYDE - [2013] FamCA 929

FAMILY COURT OF AUSTRALIA

KHOO & PRYDE

[2013] FamCA 929

FAMILY LAW – CHILDREN – With whom the child shall live and spend time – parental responsibility – mother to have sole parental responsibility – child to live with the mother – child to spend supervised time with the father at a contact centre twice per year – infrequent visits in the child’s best interests – allegations of child abuse and family violence sustained against the father – allegations against the father of child sexual abuse not substantiated – no unacceptable risk of harm for the child to maintain a meaningful relationship with the father in that manner – both parties struggle to recognise the child’s emotional needs – the child’s relationship with the father is hampered by the child’s perception of pressure from the mother and her half-sibling – the parties cannot communicate due to the mother’s entrenched animosity towards the father.

FAMILY LAW – INJUNCTIONS – father restrained from approaching the mother’s home or the child’s school – mother required to ensure the child’s retention of the father’s surname.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65Y, 65Z, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B
Trans-Tasman Proceedings Act 2010 (Cth)
Trans-Tasman Proceedings Act 2010 (NZ)

AMS v AIF (1999) 199 CLR 160
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Cales & Cales (2010) FLC 93-459

Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
Marriage of Bieganski (1993) 16 Fam LR 353
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8
Moose v Moose (2008) FLC 93-375

MRR v GR (2010) 240 CLR 461
Sampson v Hartnett (No.10) (2007) FLC 93-350
U v U (2002) 211 CLR 238

APPLICANT:

Mr Khoo

RESPONDENT:

Ms Pryde

INDEPENDENT CHILDREN’S LAWYER:

Boughton Legal

FILE NUMBER:

BRC

7330

2010

DATE DELIVERED:

28 November 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Justice Austin

HEARING DATE:

29, 30, & 31 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McCauley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Boughton Legal

Orders

All former orders relating to the child N, born … 2001, (“the child”) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:
(a)The mother’s residence; and
(b)Any school attended by the child.
The mother shall forthwith:
(a)Notify the father, and keep him notified, of the school attended by the child; and
(b)Authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.
Unless otherwise agreed in writing, the parties shall take…

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: KHOO & PRYDE [2013] FamCA 929
Case: [2013] FamCA 929
Decision Date

CaseChat Overview and Summary

In *Khoo & Pryde* [2013] FamCA 929, the Family Court of Australia considered parenting orders for a child born in 2001. The proceedings involved Mr. Khoo (the father) and Ms. Pryde (the mother), with an Independent Children’s Lawyer appointed. The dispute had been ongoing since 2010 and involved serious allegations of family violence and child abuse, leading to the matter being transferred to the Family Court and classified under the Magellan protocol. The Court noted that the proceedings had been significantly delayed due to parallel criminal proceedings against the father and a lack of consistent legal representation, resulting in fractured family relationships and limited evidence.

The Court was required to determine the best interests of the child, specifically with whom the child should live and spend time, and the nature of parental responsibility. Key issues included assessing the credibility and substantiation of allegations of child abuse and family violence made against the father, and determining the level of risk to the child in maintaining a relationship with him. The Court also had to consider the communication breakdown between the parents, the child's perception of pressure from the mother and her half-sibling, and the mother's animosity towards the father, all of which impacted the child's emotional needs and relationship with the father.

Justice Austin found that while allegations of child sexual abuse against the father were not substantiated, allegations of child abuse and family violence were sustained. The Court concluded that there was no unacceptable risk of harm to the child in maintaining a limited, supervised relationship with the father. The reasoning applied the principles of the *Family Law Act 1975* (Cth), particularly concerning the best interests of the child and the presumption of equal shared parental responsibility, which was displaced in this instance. The Court noted that both parents struggled to recognise the child's emotional needs and that the child's relationship with the father was hampered by her perception of pressure from the mother.

Consequently, the Court ordered that the mother have sole parental responsibility and that the child live with her. The father was restrained from approaching the mother's home or the child's school. Contact between the child and father was limited to twice a year for two hours at a supervised contact centre, deemed to be in the child's best interests due to the infrequent nature of the visits and the sustained allegations. The mother was also required to ensure the child retained the father's surname.

Orders