Leaton and Tuppahige - [2016] FamCA 852

FAMILY COURT OF AUSTRALIA

LEATON & TUPPAHIGE

[2016] FamCA 852

FAMILY LAW – CHILDREN – final orders – where the parties are in dispute as to the parenting arrangements of the children – where the father alleges child sexual abuse and considers the children at risk in the mother’s care – where consideration is given to the principles relevant to parenting orders – where the Court does not consider the children to be at risk – where it is ordered that the parties have equal shared parental responsibility – where the mother is required to consult with the father but ultimately she is able to make decisions in respect of health and education – where it is ordered that the children live with the mother and spend substantial and significant time with the father – where the father is restrained from subjecting the children to unnecessary examination and investigation.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT, 69ZV, 69ZX

Family Law Rules 2004 (Cth) r 15.13

Beckham & Desprez [2015] FamCAFC 247 Blanding & Blanding [2016] FamCAFC 21 Chappell & Chappell (2008) FLC 93-382 Doherty & Doherty (2014) FLC 93-571 Doherty & Doherty [2016] FamCAFC 182 Mazorski & Albright [2007] FamCA 520 MRR v GR (2010) 240 CLR 461 Newlands & Newlands (2007) 37 Fam LR 103
APPLICANT:	Ms Leaton

RESPONDENT:

Mr Tuppahige

INDEPENDENT CHILDREN’S LAWYER:

Southern Vales Legal

FILE NUMBER:

ADC

865

2010

DATE DELIVERED:

5 October 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

18, 19, 20, 21, 22, 27 & 28 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Read

SOLICITOR FOR THE APPLICANT:

Southern Community Justice Centre

COUNSEL FOR THE RESPONDENT:

Litigant in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Southern Vales Legal

Orders

That the parties share parental responsibility for the children C born … 2007 and R born … 2009 (collectively “the children”) subject to paragraph 2 hereunder.
That the mother have parental responsibility in respect of education and health issues affecting the children subject to a requirement that she will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the children’s education and health (including dental) and shall consult with the father about such issues, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.
The children shall live with the mother.
The children shall spend time with the father as follows:-
(a)During school terms, each alternate weekend from the conclusion of school on Thursday (or 4 pm if a non-school day) until the commencement of school on Monday (or 9 am if a non-school day) PROVIDED that this order shall be suspended during periods of school holidays and shall recommence in its operation on the first weekend of each new term;
(b)During each of the April,…

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 Leaton and Tuppahige

Details

AGLC: Leaton and Tuppahige [2016] FamCA 852
Case: [2016] FamCA 852
Decision Date: 5 October 2016

CaseChat Overview and Summary

In the matter of Leaton and Tuppahige, Berman J considered disputes between the parties concerning parental responsibility and time spent with their two children, C and R. The proceedings addressed arrangements for the children's upbringing, including their living arrangements, education, health, and communication with each parent.

The court was required to determine the specific terms of shared parental responsibility, particularly concerning educational and health decisions. It also needed to establish a detailed schedule for the children's time with each parent, including provisions for school terms, holidays, birthdays, and special occasions. Further issues included communication protocols between the parents and children, handover arrangements, and the management of medical appointments and information. The court also had to consider injunctive relief to restrain certain actions by the father and mother.

Berman J ordered that the parties share parental responsibility, with the mother having the final decision-making authority on education and health matters after consulting with the father. The children were ordered to live with the mother, with a comprehensive schedule outlining the father's time with them, including specific arrangements for weekends, school holidays, and birthdays. The court also made orders regarding communication between the parents and children, handover locations, and the facilitation of medical appointments and information sharing. Crucially, the father was restrained from reporting allegations of abuse to certain parties, discussing proceedings with the children or third parties, and taking the children to non-emergency medical or psychological appointments without the mother's consent. The mother was similarly restrained from allowing the children contact with specific individuals. Passports were to be held by the mother, and neither party could remove the children from Australia without consent or further court order.

Orders

Orders of the court

That the parties share parental responsibility for the children C born … 2007 and R born … 2009 (collectively “the children”) subject to paragraph 2 hereunder.

That the mother have parental responsibility in respect of education and health issues affecting the children subject to a requirement that she will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the children’s education and health (including dental) and shall consult with the father about such issues, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.

The children shall live with the mother.

The children shall spend time with the father as follows:-

(a) During school terms, each alternate weekend from the conclusion of school on Thursday (or 4 pm if a non-school day) until the commencement of school on Monday (or 9 am if a non-school day) PROVIDED that this order shall be suspended during periods of school holidays and shall recommence in its operation on the first weekend of each new term;

(b) During each of the April, July and September/October school holidays from the conclusion of school on the last day of term until 5 pm on the middle Saturday of the said holidays;

(i) In 2016/2017, for the first half thereof commencing from the conclusion of school on the last day of term until 5 pm on the mid-point of the holidays and for the same period in each alternate year thereafter;

(ii) In 2017/2018, for the second half thereof commencing at 5 pm on the mid-point of the holidays and concluding at 5 pm on the last Sunday of the holidays and for the same period in each alternate year thereafter PROVIDED that paragraph 4(c)(i) of the within order be suspended from 3 pm on 24 December until 3 pm on 26 December in each year;

(d) From 3 pm on Christmas Eve until 3 pm on Christmas Day in 2016 and during the same period in each alternate year thereafter PROVIDED HOWEVER that the children shall spend Christmas with the mother in 2016 and each alternate year thereafter from 3 pm on Christmas Day until 3 pm on Boxing Day;

(e) From 3 pm on Christmas Day until 3 pm on Boxing Day in 2017 and during the same period in each alternate year thereafter PROVIDED HOWEVER that the children shall spend Christmas with the mother in 2017 and each alternate year thereafter from 3pm on Christmas Eve until 3 pm on Christmas Day;

(f) On the children’s birthday being … and … in each year if the children are not in the care of the father:-

(i) If the birthday falls on a school day THEN from the conclusion of school until 6 pm;

(ii) If the birthday falls on a weekend THEN from 9 am until 1 pm PROVIDED THAT in the event either child’s birthday falls on a day when they are in the care of the father THEN the father’s time shall be suspended in each year and the children shall return to the mother’s care as follows:-

A. If a school day, from the conclusion of school until 6 pm on the said child’s birthday;

B. If a non-school day, from 9 am until 1 pm on the said child’s birthday.

(g) On Father’s Day in each year from 4 pm on the Saturday immediately preceding Father’s Day until 6 pm on Father’s Day PROVIDED that in the event that Mother’s Day shall fall on a day that the children are in the care of the father THEN the father’s time shall be suspended and the children shall return to the mother’s care from 4 pm on the Saturday immediately preceding Mother’s Day until 6 pm on Mother’s Day;

(h) That in the event that the said children are to be with the father on the birthday of L Junior born ... 2012 THEN the father’s time shall be suspended and the children returned to the mother’s care from 9 am on L Jnr’s birthday to 9 am the following day.

Whilst the children are in the care of each party they shall have telephone communication or (Skype or Facetime communication if available) with the other party at reasonable times and in the event that the said children do not spend time with either party for a period of seven (7) days, each party shall facilitate such communication on not less than one occasion during that seven (7) day period at times to be agreed between the parties, but in default of agreement at 7 pm on the Tuesday of the said seven (7) day period.

That all handovers that do not take place at the children’s school shall take place at such location as may be agreed between the parties but in default of agreement inside the B Police Station.

That the mother shall be responsible for and arrange all medical appointments with general practitioners and other allied health practitioners in her own time and where those appointments are necessary to be in the father’s time following discussions with the father for appointments to fit in with his schedule where possible, advise the father of all appointments.

In the event that the children are in the care of the father and he considers that they need urgent emergency medical attention he is to make an appointment at Health at Suburb G or the J Hospital only and only on the basis that it is an absolute emergency, that he has notified the mother or attempted to notify the mother and she is not able to attend to collect the children in which circumstances the father is able to take the children for medical attention or treatment.

That each party do advise the other as soon as is practicable of any serious accident or illness suffered by the children including the name of any treating health professional and the details of any diagnosis, prognosis and treatment.

10.

The father be at liberty to obtain direct from the children’s treating health professionals information as to the children’s medical condition including any diagnosis, prognosis and proposed treatment.

11.

The mother will do all things necessary to authorise the children’s school to provide copies of reports, photographs (at the expense of the father), newsletters and any other information in relation to the said child’s progress as they may require from time to time and is consistent with the reasonable obligations of the said school to provide same.

12.

That each party be able to attend all school functions, school and extra-curricular performances and special occasions in which parental involvement is encouraged including sports, parent/teacher interviews and presentations.

13.

The father is restrained and an injunction is granted restraining him from:

(a) Reporting any allegation of abuse of the said children to any person or organisation SAVE AND EXCEPT:-

(i) South Australian Police (SAPOL);

(ii) Child Protection Services; and

(iii) Families SA;

(b) Personally videotaping or otherwise recording any disclosure of abuse by the children or allowing any third party to do so SAVE AND EXCEPT for any authorised employee or official of SAPOL, Child Protection Services or Families SA if undertaken in the course of an investigation;

(c) Discussing these proceedings or any issue or allegation raised in these proceedings with or in the presence of the said children or from allowing any other person to do so;

(d) Discussing these proceedings or any issue or allegation raised in these proceedings with any other person or entity including but not limited to the said child’s school, staff or care provider to the said children, extra-curricular co-ordinators or teachers;

(e) Allowing any person or permitting the children to attend upon any psychologist, counsellor or any other mental health practitioner or social worker; and

(f) From taking the children or either of them or allowing any third party to take the children or either of them to a general medical practitioner, any health professional, psychologist, counsellor or any other mental health practitioner or social worker or hospital SAVE AND EXCEPT in the case of an absolute emergency in which case the father must notify the mother forthwith of the emergency and the action taken and by whom.

14.

The parties do all things necessary to obtain passports for the children which shall thereafter be held by the mother.

15.

That each party be and are hereby restrained by injunction from removing the said children from the Commonwealth of Australia without the prior written consent of the other party or further order of the Court or from obtaining or causing the issue of a passport for the said children without first obtaining the written consent of the other party SAVE as is permitted by these orders.

16.

That the mother be restrained and an injunction is hereby granted restraining her from allowing the children or either of them to come into contact with Mr V and Mr Leaton or allowing any third party to do so.

17.

That the order appointing the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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