Leighton and Carey - [2008] FamCA 868

FAMILY COURT OF AUSTRALIA

LEIGHTON & CAREY

[2008] FamCA 868

FAMILY LAW – CHILDREN – 6 year old girl – Allegation of sexual abuse – Counter-allegation of alienation – Heard evidence in relation to sexual abuse – Positive finding of sexual abuse – Matter stood over for parties and ICL to consider consequences

APPLICANT:

Mr Leighton

RESPONDENT:

Ms Carey

FILE NUMBER:

BRC

11394

2007

DATE DELIVERED:

16 October 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Jordan J

HEARING DATE:

16 October 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Shoebridge, Simonidis Shoebridge

THE RESPONDENT:

Respondent appears on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDRENS' LAWYER:

Mr Cameron

SOLICITOR FOR THE INDEPENDENT CHILDRENS' LAWYER

Legal Aid Queensland. Brisbane, Qld

Orders

IT IS ORDERED THAT

The matter be adjourned for further hearing to 9.30 am on 12 November 2008 before the Honourable Justice Jordan.
The Applicant and the Respondent have leave to appear by telephone-link on 12 November 2008 if desired.
Until further order, the Father have such supervised time as may be agreed to between the Father, the Mother and the Independent Children’s Lawyer.
The Family Consultant, Mr F, or some other Family Consultant assigned by the Manager, Child Dispute Services, attend upon the child, to properly explain the circumstances she now finds herself in.

IT IS REQUESTED THAT

Mr F, Family Consultant, make himself available either personally or by telephone-link at the further hearing of the matter at 9.30 am on 12 November 2008.

IT IS FURTHER ORDERED THAT

The Mother, Father and any third parties refrain from discussing the proceedings with the child.
Pursuant to Section 65L of the Family Law Act, the compliance of the parents with orders that the child spend time with the father must, as far as practicable, be supervised by a Family Consultant nominated by the Manager, Child Dispute Services, Brisbane Registry, and such supervisor is to provide each of the parents with such assistance as he or she reasonably requests in relation to complying with and carrying out these orders.
The Family Consultant furnish to the Court an oral or written report pursuant to the Section 65L order at the further hearing of the matter.
Pursuant to s65DA(2) and s62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Leighton & Carey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC11394 of 2007

MR LEIGHTON

Applicant

And

MS CAREY

Respondent

REASONS FOR JUDGMENT

ex tempore

In this matter, there are competing applications by the parents for orders in relation to the care of their daughter, born in December 2001.…

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 Leighton and Carey

Details

AGLC: Leighton and Carey [2008] FamCA 868
Case: [2008] FamCA 868
Decision Date: 16 October 2008

CaseChat Overview and Summary

This matter came before Jordan J concerning parenting orders. The applicant and respondent, identified as the Father and Mother respectively, were involved in a dispute regarding their child.

The court was required to determine the terms of interim parenting arrangements, including the nature and supervision of the child's time with the Father. Further issues included the role of a Family Consultant in explaining the proceedings to the child and in supervising parental compliance with the orders, as well as the reporting obligations of the Family Consultant to the court. The court also considered the need to prevent discussion of the proceedings with the child and to inform the parties of their obligations and the consequences of contravention.

Jordan J ordered an adjournment for further hearing, granting the parties leave to appear by telephone. The court made interim orders for supervised time between the Father and the child, to be agreed upon by the parties and the Independent Children’s Lawyer. A Family Consultant was directed to attend upon the child to explain her circumstances and to provide assistance to the parents in complying with the orders, with a report to be furnished to the court. The court also ordered that the parents and any third parties refrain from discussing the proceedings with the child and directed that the particulars of the orders, obligations, consequences of contravention, and sources of assistance be set out in an attached Fact Sheet.

Orders

Orders of the court

IT IS ORDERED THAT

The matter be adjourned for further hearing to 9.30 am on 12 November 2008 before the Honourable Justice Jordan.

The Applicant and the Respondent have leave to appear by telephone-link on 12 November 2008 if desired.

Until further order, the Father have such supervised time as may be agreed to between the Father, the Mother and the Independent Children’s Lawyer.

The Family Consultant, Mr F, or some other Family Consultant assigned by the Manager, Child Dispute Services, attend upon the child, to properly explain the circumstances she now finds herself in.

IT IS REQUESTED THAT

Mr F, Family Consultant, make himself available either personally or by telephone-link at the further hearing of the matter at 9.30 am on 12 November 2008.

IT IS FURTHER ORDERED THAT

The Mother, Father and any third parties refrain from discussing the proceedings with the child.

Pursuant to Section 65L of the Family Law Act, the compliance of the parents with orders that the child spend time with the father must, as far as practicable, be supervised by a Family Consultant nominated by the Manager, Child Dispute Services, Brisbane Registry, and such supervisor is to provide each of the parents with such assistance as he or she reasonably requests in relation to complying with and carrying out these orders.

The Family Consultant furnish to the Court an oral or written report pursuant to the Section 65L order at the further hearing of the matter.

Pursuant to s65DA(2) and s62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in 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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