Licha and Wunscher - [2008] FamCA 147

FAMILY COURT OF AUSTRALIA

LICHA & WUNSCHER

[2008] FamCA 147

FAMILY LAW – MAGELLAN - final orders made in February 2007 with acknowledgment child not at risk of sexual abuse in father's care - breach of orders - maintenance by mother of allegations of sexual abuse - emotional abuse as result of mother's unshakeable conviction of sexual abuse - interim move to father's full-time care - refusal by mother to see child in supervised environment - balancing need to maintain meaningful relationships with both parents with need to protect child from harm - orders for sole parental responsibility - child to live with father - no time or communication with mother, save by correspondence

Family Law Act 1975 (Cth) ss 60B(1), 60CC(1), (3)(d), (4), (4A), 61DA, 65DAA(1) and (2), 118

Watson and Morton (2007) FLC 93-331
Rice & Asplund (1979) FLC 90-725
Edwards & Edwards (2006) FLC 93-306
M and M (1988) 166 CLR 69
B and B (1993) FLC 92-357
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
WK & SR (1997) FLC 92 -787
W & W (abuse allegations; unacceptable risk) (2005) FLC 93-235

FATHER:

Mr Licha

MOTHER:

Ms Wunscher

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

MLF

6928

2003

DATE DELIVERED:

11 March, 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J.

HEARING DATE:

11,12,13, 14 and 15 February, 2008

REPRESENTATION

COUNSEL FOR THE FATHER:

Mr. Ham

SOLICITOR FOR THE FATHER:

Pearsons Schetzer & Associates

THE MOTHER:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr. Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Septimus Jones & Lee

Orders

That all previous parenting orders and injunctions relating to the child … born … August, 1999 (“the child”) be discharged.

That the child live with the father and he have sole parental responsibility for her.

That the mother be and is hereby restrained from contacting or communicating with the child save in accordance with these orders.

That the mother may communicate with the child by sending her letters, cards and gifts by ordinary pre-paid post addressed to the postal address provided by the father pursuant to paragraph (14) hereof, and the father shall do all things reasonably necessary to deliver such items to the child PROVIDED THAT the father be at liberty to open and read items of correspondence and inspect gifts and, in his absolute discretion, determine that an item should not be given to the child if it contains material which is inappropriate or likely to cause the child emotional distress.

That the father do all things reasonably necessary to encourage the child to send letters, cards and gifts to the mother by ordinary pre-paid post addressed to the postal address provided by the mother pursuant to paragraph (13) hereof.

That it be within the absolute discretion of the father to determine :
(a)whether the mother may spend time with the child, and the time, duration and place at which that may occur;
(b)whether any such time be supervised and…

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 Licha and Wunscher

Details

AGLC: Licha and Wunscher [2008] FamCA 147
Case: [2008] FamCA 147
Decision Date: 11 March 2008

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in August 1999, with the proceedings heard by Brown J. The dispute involved the father and mother of the child, and the court was required to determine the future living arrangements, parental responsibility, and communication between the parents and the child.

The court was tasked with determining the primary caregiver for the child, the extent of the mother's contact and communication with the child, and the geographical restrictions on the mother's proximity to the child and her school. Further issues included the management of the child's schooling, medical care, and the potential for international travel. The court also considered the role of a parenting program for the father and the involvement of an independent children's lawyer.

Brown J. ordered that all previous parenting orders and injunctions be discharged. The child was to live with the father, who was granted sole parental responsibility. The mother was restrained from contacting or communicating with the child except as specifically permitted by the orders. This included the ability to send letters, cards, and gifts, which the father could inspect and withhold if deemed inappropriate. The father had absolute discretion regarding any time the mother might spend with the child, including supervision, and any telephone communication. The mother was also restrained from attending within 100 metres of the child's school and residential address, or attending events where the child might be present, without the father's written consent. The court also made detailed provisions regarding the child's schooling, medical treatment, and the registration of the child's name. Crucially, both parents were restrained from removing the child from Australia, and the child's name was to be placed on the Airport Watch List. The mother was further restrained from removing the child from the father's possession, with the possibility of arrest without warrant if she did so. The independent children's lawyer was to be discharged one month from the date of the orders.

Orders

Orders of the court

That all previous parenting orders and injunctions relating to the child … born … August, 1999 (“the child”) be discharged.

That the child live with the father and he have sole parental responsibility for her.

That the mother be and is hereby restrained from contacting or communicating with the child save in accordance with these orders.

That the mother may communicate with the child by sending her letters, cards and gifts by ordinary pre-paid post addressed to the postal address provided by the father pursuant to paragraph (14) hereof, and the father shall do all things reasonably necessary to deliver such items to the child PROVIDED THAT the father be at liberty to open and read items of correspondence and inspect gifts and, in his absolute discretion, determine that an item should not be given to the child if it contains material which is inappropriate or likely to cause the child emotional distress.

That the father do all things reasonably necessary to encourage the child to send letters, cards and gifts to the mother by ordinary pre-paid post addressed to the postal address provided by the mother pursuant to paragraph (13) hereof.

That it be within the absolute discretion of the father to determine :

(a) whether the mother may spend time with the child, and the time, duration and place at which that may occur;

(b) whether any such time be supervised and if it is :

(i) the nature of such supervision; and

(ii) the identity of the supervisor;

(d) the nature and extent of any such telephone communication;

and unless the parties agree to the contrary, the costs of any supervision of the mother’s time with the child be borne by the mother.

That without limiting the generality of paragraph (3) hereof the mother be and is hereby restrained by herself, her servants and agents from :

(a) attending within 100 metres of the child’s school and residential address, save with the written consent of the father;

(b) attending events or functions (including but not limited to sporting events, parent/teacher interviews and school or extra-curricular concerts or performances) at which the child could reasonably be expected to be present, save with the written consent of the father; and

(c) contacting the principal, teachers or other staff at the school attended by the child from time to time, save with the written consent of the father.

That as soon as practicable the father authorise the principal of the child’s school to post to the mother (at her expense, if any) a copy of each school report for the child and an order form for each school photograph of the child.

That as soon as practicable the father provide a sealed copy of this order to the principal of the school attended by the child.

10.

That the father advise the mother in writing of any proposed change of the child’s school no later than fourteen days prior to the date of commencement at the new school.

11.

That the father advise the mother as soon as practicable of any serious illness or injury suffered by the child and keep her advised of the child’s prognosis and treatment, and it shall be a matter for the father to determine, and advise the mother in writing, if the mother shall have contact with the child at such time or times, or contact with any treating medical practitioners or like professionals.

12.

That the father do all things necessary to cause the child’s name to be registered as … Wunscher-Licha (in the event paragraph (7) of the orders made herein on 14 February, 2007 has not been complied with) and each of the mother and father be and are hereby restrained from causing or permitting the child to be referred to, known as, or enrolled at school as anything other than … Wunscher-Licha.

13.

That the mother keep the father informed of a postal address to which items can be sent pursuant to paragraph (5) hereof and a telephone number at which she can be contacted in an emergency.

14.

That the father keep the mother informed of a postal address to which items can be sent pursuant to paragraph (4) hereof and a telephone number at which he can be contacted in an emergency.

15.

That the father ensure that the child continues to attend upon Dr. R or such other expert as recommended by Dr. R and the father be responsible for payment of costs associated with his attendances on Dr. R and the child’s attendances on Dr. R.

16.

That in the event Dr. R advises the mother in writing that, in his opinion, it would be in the child’s best interests for :

(a) the mother to attend upon Dr. R; and/or

(b) the mother to attend a consultation he has with the child;

the mother may attend upon Dr. R PROVIDED THAT she abides by all lawful directions made by him and is responsible for costs associated with her own attendances.

17.

That as soon as practicable the father undertake the parenting program conducted by G Centre or such other parenting program as is recommended by the independent children’s lawyer and the court notes that the father consents to this order.

18.

That until further order each of the parties, by themselves, their servants or agents be and are hereby restrained from removing or attempting to remove the said child … born … August, 1999 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.

19.

That as soon as practicable the solicitor for the father serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne, AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.

20.

That the mother be and is hereby restrained by herself, her servants and agents from removing the child from the father’s possession or the possession of any person with whom he has placed the child and in the event the mother does remove, or attempts to remove, the child, she may be arrested without warrant.

21.

That the independent children’s lawyer meet with the child within fourteen days, at a time and place nominated by her and explain to the child the effect of these orders and she be at liberty to liaise with Dr. R and obtain his advice as to how best to facilitate this order.

22.

That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, upon determination of the appeal.

23.

That a copy of the reasons for judgment herein may be made available to :

(a) Ms. W;

(b) Dr. R;

(c) the principal of a school attended by the child and, in his or her absolute discretion, any teacher or other member of staff working with the child;

(d) any medical practitioner, psychologist or like professional working with the child; and

(e) the Department of Human Services and Victoria Police, in the event a notification is made relating to the child or allegations are made about her care or safety.

24.

That all extant applications be otherwise dismissed.

25.

That these proceedings be removed from the List of matters awaiting finalisation.

26.

That 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

27.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

That the effect of paragraph (12) is to restate paragraphs (7) and (8) of orders made herein on 14 February, 2007.

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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