Leth and Yayathi - [2012] FamCA 1031

FAMILY COURT OF AUSTRALIA

LETH & YAYATHI

[2012] FamCA 1031

FAMILY LAW – PARENTING – Equal shared parental responsibility – Where the children live primarily with the mother - Allegations of sexual abuse - Where a child is avoidant of any relationship with the father –Best interests - Where it is agreed that the children should have a relationship with both parents - Whether the mother is capable of encouraging and facilitating a relationship between the children and the father - Where a graduated regime of time with the father is recommended by the single expert – Whether interim orders only should be made.

McCall & Clark (2009) FLC 93-405); Mazorski & Albright (2007) 37 Fam LR 518; Leighton & Carey [2010] FamCAFC 94

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61C, 61DA, 65DAA and 65DAC

Evidence Act1995 (Cth) s 140

APPLICANT: MOTHER

Ms Leth

RESPONDENT FATHER:

Mr Yayathi

FILE NUMBER:

DUC

2009

DATE DELIVERED:

15 June 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Loughnan J

HEARING DATES:

14, 15 February & 21, 22, 23 & 24 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT MOTHER:

Ms. M. Devere

SOLICITOR FOR THE APPLICANT MOTHER

Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT FATHER:

Ms. P. Nash

SOLICITOR FOR THE RESPONDENT FATHER

D Hardie Solicitors

COUNSEL FOR THE ICL:

Ms. S. Leis

INDEPENDENT CHILDREN’S LAWYER

Mark Whelan Lawyers

Orders

The mother shall attend an appointment with Family Consultant Ms D at the Parramatta Registry of the Court on a date nominated by Ms D for the purpose of preparing her to support B’s re-introduction to her father. The mother shall attend upon such other appointments or phone consultations as Ms D determines as necessary, and the mother is to be given forty-eight hours notice.

Parental responsibility

Pending further order the parents shall have equal shared parental responsibility for B born … March 2003 and C born … October 2004.

Residence

Pending further order the children shall live with the mother.

What Time the Children Spend with the Father

Pending further order the children shall spend time with the father as follows:
C – Term Time
a.The Court notes that the existing orders relating to alternate weekend contact between C and the father shall continue. The parties agree that C shall spend time with the father from 5.30 pm Friday to 4.30 pm Sunday of each alternate weekend.
B – Reintroduction
b.On the date nominated by the Independent Children’s Lawyer the mother shall bring B to the Parramatta registry of the Court for a meeting with the Independent Children’s Lawyer and the Family Consultant Ms D and the mother is to be given forty-eight hours notice of such meeting. Following that meeting B may have a brief meeting with the father if in the opinion of Ms D she is up to such a meeting.
c.On up to 3 dates nominated by Family Consultant Mr E the mother shall bring B to the H Town registry of…

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 Leth and Yayathi

Details

AGLC: Leth and Yayathi [2012] FamCA 1031
Case: [2012] FamCA 1031
Decision Date

CaseChat Overview and Summary

These proceedings before the Family Court of Australia concerned parenting arrangements for two children, B (aged 9) and C (aged 7), the children of Ms Leth (the applicant mother) and Mr Yayathi (the respondent father). The parents separated in June 2008. The dispute centred on allegations of sexual abuse, the children's avoidance of a relationship with the father, and the mother's alleged lack of capability in encouraging and facilitating a relationship between the children and the father.

The court was required to determine several key legal issues. These included whether the mother was capable of promoting a relationship between the father and the children, particularly B. The court also had to consider if, in light of this, the primary residence of the children should be reversed to live mainly with the father, and if so, what conditions should apply to the mother's time with them. Furthermore, the court needed to establish an appropriate timetable and safeguards for the reintroduction of a meaningful relationship between the father and B, and whether the orders should be made on an interim basis only.

The court's reasoning and the legal principles applied are reflected in the detailed orders made. The court found that equal shared parental responsibility should continue, with the children living primarily with the mother. A graduated regime for the children spending time with the father was established, with significant involvement from a Family Consultant and a counsellor, Ms I, to facilitate B's re-introduction to her father. The mother was specifically ordered to encourage B's relationship with her father and to encourage both children to call the father "Dad" or "Daddy". Both parents were also ordered to attend parenting courses and individual counselling.

Pending further order, the court made interim orders that the parents have equal shared parental responsibility and that the children live with the mother. The orders detail a phased approach to the children spending time with the father, commencing with supervised and facilitated contact, gradually increasing in duration and independence. These orders also include provisions for communication between parents and children, therapeutic counselling for B, and general parenting matters such as not speaking negatively about the other parent and keeping each other informed of the children's well-being.

Orders