FAMILY COURT OF AUSTRALIA
| LETH & YAYATHI | [2014] FamCA 4 |
| FAMILY LAW – CHILDREN – best interests of the child – allegations of sexual abuse of the daughter by the father – whether there is an unacceptable risk of sexual abuse – where the children live primarily with the mother – where the mother seeks that the children live with her and that only the son spend time with the father – where the father seeks that the children live with him and that he have sole parental responsibility of both children – where the father seeks the mother have no contact with the children for a period of six months – where the father contends that the mother presents an unacceptable risk of psychological harm to both children – where a court ordered reintroduction program between the father and daughter failed – where there is a finding on the balance of probabilities sexual abuse of the daughter has not occurred – where an order is made that the parties have equal shared parental responsibility for the son, but not for the daughter – where an order is made that the mother have sole parental responsibility for the daughter – where a change of residence for the daughter would be traumatic – where no order for equal or substantial and significant time between the son and father is made due to the poor relationship and physical distance between the parents – where it is in the best interests of the children that no change of residence is made – where an order is made that the children continue to live with the mother. | ||
| Evidence Act 1995 (Cth) ss 140 | ||
| ||
| APPLICANT: | Ms Leth |
| RESPONDENT: | Mr Yayathi |
| INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan |
| FILE NUMBER: | DUC | 28 | of | 2009 |
| DATE DELIVERED: | 9 January 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 18 – 20 November 2013, 17 December 2013 |
REPRESENTATION
COUNSEL FOR THE APPLICANT MOTHER: | Mr A Givney |
| SOLICITOR FOR THE APPLICANT MOTHER | Rafton Family Lawyers |
COUNSEL FOR THE RESPONDENT FATHER: | Ms P Nash |
| SOLICITOR FOR THE RESPONDENT FATHER | Kelly Hardie Solicitors |
COUNSEL FOR THE ICL: | Ms S Leis |
| INDEPENDENT CHILDREN’S LAWYER | Mark Whelan |
Orders
All current parenting orders in relation to the child B born … March 2003 and the child C born … October 2004 are discharged.
Ancillary Orders
All previous parenting orders are discharged.
The mother shall attend upon an appointment with Family Consultant Mr E at the Dubbo registry of the Court on a date nominated by Mr…
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- LETH & YAYATHI [2014] FamCA 4
- Case
- [2014] FamCA 4
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children, specifically whether there was an unacceptable risk of sexual abuse of the daughter by the father, and whether the father presented an unacceptable risk of psychological harm to the children. The court also had to consider the impact of a failed reintroduction program between the father and daughter and the existing poor relationship and physical distance between the parents.
The court found, on the balance of probabilities, that sexual abuse of the daughter by the father had not occurred. Applying the principles in *Briginshaw v Briginshaw* and considering the best interests of the children under the *Family Law Act 1975*, the court made orders for equal shared parental responsibility for the son, but sole parental responsibility for the daughter to the mother. The court determined that a change of residence for the daughter would be traumatic and that it was in the best interests of both children that they continue to live with the mother. Due to the poor relationship and physical distance between the parents, no order for equal or substantial and significant time between the son and father was made.
Orders
Orders of the court
1.
All current parenting orders in relation to the child B born … March 2003 and the child C born … October 2004 are discharged.
Ancillary Orders
2.
All previous parenting orders are discharged.
3.
The mother shall attend upon an appointment with Family Consultant Mr E at the Dubbo registry of the Court on a date nominated by Mr E for the purpose of Mr E explaining the orders to the children.
Parental Responsibility
4.
The mother and the father shall have equal shared parental responsibility for C.
5.
The mother have sole parental responsibility for B PROVIDED THAT she consult with the father regarding any significant, non-urgent, decision about B at least 28 days before implementing such a decision.
Where the Children Live
6.
Apart from as specified in these orders, C and B shall live with the Mother.
What Time the Children Spend with the Father
B
7.
Any time that B spends with the father shall be at the sole discretion of the mother.
C
8.
C shall spend time with the father as follows:
Term Time
(a) C shall spend each alternate weekend with the father from 5.30pm Friday to 4.30pm Sunday, the first such weekend to occur on the Friday immediately following the pronouncement of these orders.
School Holiday Time
(b) For half of each school holiday period as agreed and failing agreement for the first half of even ended years (e.g. 2012, 2014, 2016 etc) and the second half in order numbered years (e.g. 2013, 2015, 2017).
The “first half” of a school holiday period means from 9.00am on the first day following the last day of the school term until 4.00pm, on the Sunday falling closest to the midpoint of the holiday period and the “second half” of a school holiday period means from 4.00pm on the Sunday falling closest to the midpoint of the school holiday period until 4.00pm on the final Saturday of the holiday period.
Other times
(c) In the event C is not otherwise with the father, C shall spend time with the father on Father's Day weekend from 5.30pm Friday to 4.30pm Sunday; and
(d) At other times as agreed between the parties in writing.
Changeovers
9.
Unless otherwise agreed between the parents, the changeover of C from the care of one parent to the other shall take place at F Town NSW.
Communication with the Children
B
10.
Any time that B communicates with the father shall be at the sole discretion of the mother.
C
11.
Each parent shall be at liberty to communicate with C by telephone, SMS text message, email or Skype when he is not in that parent's care:
(a) On Tuesdays and Thursdays between 7.00pm and 8.00pm when C is not in that parents care; and
(b) On C's birthday, Christmas, and Easter in the event these special occasions are not covered by order 11(a).
Counselling
12.
Each parent shall do all acts necessary to ensure that B continues with therapeutic counselling with an appropriate counsellor, as agreed between the parents and the Independent Children's Lawyer, and in default of agreement as nominated by the Mother, for so long as recommended by the counsellor.
13.
The Independent Children's Lawyer is granted liberty to provide a copy of these orders and any reasons for judgment issued by the Court to B's counsellor with a request that he or she assist in their implementation.
14.
The parties are to pay equally all costs associated with B's counselling.
15.
Each party is restrained from taking B to any other counsellor or psychologist without the written consent of the other party and the Independent Children's Lawyer.
16.
Each party shall continue with their individual therapeutic counselling for so long as is recommended by their particular counsellor and shall provide their counsellor with a copy of these orders and with any reasons for Judgment issued by the Court.
General Parenting Matters
17.
Notwithstanding any provision herein to the contrary, B and C shall spend time with their Mother on Mother's Day weekend from 5.30pm Friday to 4.30pm Sunday.
18.
The mother shall use her best endeavours to actively encourage C to attend and enjoy time with his father.
19.
The mother is to use her best endeavours to encourage each of the children to call the father "Dad" or "Daddy".
20.
If they have not already done so, within 28 days of the making of these orders each parent shall enrol in the Parenting After Separation course or equivalent course and shall attend such course until it is completed; each parent shall provide the other and the Independent Children's Lawyer with evidence of enrolment within 7 days of so enrolling, and of completion within 7 days of completion.
21.
Neither parent shall speak badly about the other parent, or any member of the other parent's family, to or in the presence of B or C and shall use their best endeavours to similarly restrain any other person from doing so.
22.
Neither parent shall discuss with B or C these proceedings, or matters that were raised by the other parent whether in their affidavits or oral evidence in the course of these proceedings.
23.
Each parent shall keep the other immediately informed of any serious illness or injury either child may suffer whist in their care and any attendance by the children at any hospital.
24.
The mother shall execute all authorities to allow the father to communicate freely with each of B and C's schools and to receive information from each child's school.
25.
Each parent is to encourage a positive relationship with the other parent.
26.
Each party is to ensure B has privacy when showering, when in the bathroom and in her bedroom when changing clothes or when B requests privacy.
27.
Each party is to ensure that the other is immediately informed of any change of contact details and residence.
28.
Neither parent shall include the children in any advertisement or publication without the written consent of the other parent.
29.
Leave is granted to the parties to relist the matter in relation to the wording of these orders by arrangement made within 28 days or such further time as the parties agree, with the associate to Loughnan J and on 7 days’ notice to the other parties.
30.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, 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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