FAMILY LAW – Interim parenting orders sought – best interests of young child – Father has previous conviction and prison sentence for possession of child pornography – recommendation for supervised time from Child at Risk Health Unit & from Office of Children, Youth & Family Support – Father seeks unsupervised time – assessment of “unacceptable risk”.

Evidence Act1995, s.140
Family Law Act1975, Part VII ss.60B(1)(a) & (b), 60CA, 60CC(2)(b), 60CC(3)(a), (b), (c), (d), (e), (f), (g), (i), (j), 61DA, 65DAA(1), (2), 69ZW

A v. A [1976] VR 298
Amador & Amador [2009] FamCAFC 196
B v B (Access) [1986] FLC ¶
Briginshaw v Briginshaw (1938) 60 CLR 336
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
Goode v Goode (2007) 36 Fam LR 422
In re G (a minor) [1987] 1 WLR 1461
Johnson & Page (2007) FLC ¶93-344
Leveque v Leveque (1983) 54 BCLR 164
M v M (1988) 166 CLR 69
Marriage of M (1987) 11 Fam LR 765
Mazorski v Albright (2008) 37 Fam LR 518
McCall & Clarke (2009) 41 Fam LR 483
Moose & Moose (2008) FLC ¶93-375
N v S (1995) Fam LR 837
Napier v Hepburn (2007) 36 Fam LR 395; (2006) FLC ¶93-303
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170
Palmer v Dolman [2005] NSWCA 361
Partington (aka Bande) v Cade (No 2) (2010) 42 Fam LR 401
Potter v Potter (2007) 37 Fam LR 208

M. Bourke, A. Hernandez, “The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography,” (2009) 24 Journal of Family Violence 183-191
R. Chisholm, “How to Treat Allegations of Violence and Abuse: Amador & Amador,” (2010) 237 Australian Family Law Bulletin 2-6
J. Fogarty, “Unacceptable risk – A return to basics,” (2006) 20 Australian Journal of Family Law 249-295
D. Howitt, K. Sheldon, “The role of cognitive distortions in paedophilic offending: Internet and contact offenders compared,” (2007) 13 Psychology, Crime and Law 469-486

Applicant:

MR LUTHER

Respondent:

MS LUTHER

File Number:

CAC 1432 of 2009

Judgment of:

Neville FM

Hearing date:

24 June 2010

Date of Last Submission:

24 June 2010

Delivered at:

Canberra

Delivered on:

23 July 2010

REPRESENTATION

Advocate for the Applicant:

Mr M Slater

Solicitors for the Applicant:

Mark Slater Family Lawyers, Canberra

Solicitors for the Respondent:

Self Represented Litigant

ORDERS

The child, [X] born [in] 2007 (“the child”), is to live with her Mother.
Until further order, the Respondent Mother is to have sole parental responsibility for the child. However, the Respondent Mother is to keep Mr Luther informed of any significant decisions in relation to the child.
Until further Order, the child spend time with the Father supervised at an agreed Contact Centre.
Pursuant to section 68L of the Family Law Act1975 an Independent Children’s Lawyer be appointed for the child [X] born [in] 2007 (“the child”).
The…

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 Luther & Luther

Details

AGLC: Luther & Luther [2010] FMCAfam 761
Case: [2010] FMCAfam 761
Decision Date: 23 July 2010

CaseChat Overview and Summary

In the Family Court of Australia, the case of Luther & Luther was heard, involving a dispute over the custody and care of a child born in 2007. The matter was between the child's parents, referred to as the Respondent Mother and the Applicant Father. The Father sought an order for the child to live with him, while the Mother argued for sole parental responsibility and limited supervised contact with the Father. The Court was tasked with determining the best living arrangements for the child, including the allocation of parental responsibility, contact arrangements, and the need for an Independent Children's Lawyer.

The legal issues before the Court encompassed the determination of the primary residence of the child, the allocation of parental responsibility, the establishment of supervised contact arrangements with the Father, and the appointment of an Independent Children's Lawyer. The Court had to consider the welfare and best interests of the child as the paramount consideration, evaluating the respective positions of the parents and the evidence presented.

The Court found that it was in the best interest of the child for her to live with her Mother, who was granted sole parental responsibility, subject to keeping the Father informed of significant decisions. The Court ordered that the child spend time with the Father under supervised conditions at an agreed Contact Centre. Additionally, the Court mandated the appointment of an Independent Children's Lawyer to represent the child's interests. The Court further instructed on the process for the provision of legal representation for the child, the provision of documentation to the Independent Children's Lawyer, and the preparation for the final hearing.

The final orders of the Court included that the child live with her Mother, with sole parental responsibility granted to the Mother, while the Father would have supervised contact. An Independent Children's Lawyer was to be appointed, and appropriate legal representation for the child was to be arranged. Submissions on the contact regime and final hearing preparations were to be filed within specified timelines. The matter was re-listed for further mention.

Orders

Orders of the court

The child, [X] born [in] 2007 (“the child”), is to live with her Mother.

Until further order, the Respondent Mother is to have sole parental responsibility for the child. However, the Respondent Mother is to keep Mr Luther informed of any significant decisions in relation to the child.

Until further Order, the child spend time with the Father supervised at an agreed Contact Centre.

Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child [X] born [in] 2007 (“the child”).

The Legal Aid Office, ACT, is requested to make arrangements as soon as practicable for appropriate representation for the child.

Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.

Each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.

Within 14 days of the date of these Orders, the parties and the Independent Children’s Lawyer each provide a two-page submission in relation to the regime for the duration and frequency of time that the child spends with the Father in accordance with Order 3.

Within 28 days of the date of these Orders, the parties and the Independent Children’s Lawyer file and serve brief written submissions regarding the preparation of the matter for final hearing.

10.

The matter be re-listed for further mention on 16th September 2010 at 9:15am.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Luther & Luther [2010] FMCAfam 761

Most Recent Citation

Atkins and Caldwell and Burns [2010] FMCAfam 940

Cases citing this decision · 3 of 3 shown

JUKES & WOODS
[2012] FMCAfam 862 Para 1

…out relevant principle in relation to “unacceptable risk.” With slight revision, I note the following from that judgment.[1] [1] Luther & Luther [2010] FMCAfam 761.…
Gates and Capps (No.2)
[2012] FMCAfam 153 Para 2

…relation to both aspects as taken from an earlier judgment of mine – but updated by reference to recent authority.[10] [10] Luther & Luther [2010] FMCAfam 761.…
Atkins and Caldwell and Burns
[2010] FMCAfam 940

…ode (2007) 36 Fam LR 422 In re G (a minor) [1987] 1 WLR 1461 Johnson & Page (2007) FLC ¶93-344 Leveque v Leveque (1983) 54 BCLR 164 Luther & Luther [2010] FMCAfam 761 M v M (1988) 166 CLR 69 Marriage of M (1987) 11 Fam LR 765 Mazorski v Albright (2008) 37 Fam LR 518 McCall & Clarke (2009) 41 Fam LR 483 Moose & Moose…

View all 3 citing cases →

Cases cited in this decision · 13 of 13 shown

Amador & Amador
[2009] FamCAFC 196 Para 4

…95; (2006) FLC ¶93-303; Johnson & Page (2007) FLC ¶93-344; Partington (aka Bande) v Cade (No 2) (2010) 42 Fam LR 401; and Amador & Amador [2009] FamCAFC 196, especially at [86] – [96]. See also the helpful summary in J. Fogarty, “Unacceptable risk – A return to basics,” (2006) 20 Australian Journal of Family Law 249-…
Potter v Potter
[2007] FamCA 350 Para 7

…6 Fam LR 395 at p.406 [56]. Napier v Hepburn’s discussion of N v S was also considered and supported by the further Full Court decision in Potter v Potter (2007) 37 Fam LR 208 at pp.231 – 231 [124] & [125].…
Palmer v Dolman
[2005] NSWCA 361 Para 14

…s referred to by their Honours have been applied in decisions after the introduction of the Evidence Act (see Palmer v Dolman [2005] NSWCA 361. See also Odgers, S, Uniform Evidence Law, 7th ed, Lawbook Co., Sydney, 2006, at 673-674.)…
Fardon v Attorney-General (Qld)
[2004] HCA 46 Para 5

…to “unacceptable risk” set out in [25] of that judgment has most recently been referred to by Gleeson CJ in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at p.593 [22].…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
[1992] HCATrans 297

…8) FLC ¶93-375 N v S (1995) Fam LR 837 Napier v Hepburn (2007) 36 Fam LR 395; (2006) FLC ¶93-303 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170 Palmer v Dolman [2005] NSWCA 361 Partington (aka Bande) v Cade (No 2) (2010) 42 Fam LR 401 Potter v Potter (2007) 37 Fam LR 208 M. Bo…
M v M
[1988] HCA 68 Para 4

…g orders that are in her best interests.[6] [5] Among many cases and other relevant materials in relation to “unacceptable risk”, see M v M (1988) 166 CLR 69; Napier v Hepburn (2007) 36 Fam LR 395; (2006) FLC ¶93-303; Johnson & Page (2007) FLC ¶93-344; Partington (aka Bande) v Cade (No 2) (2010) 42 Fam LR 401; and A…
Briginshaw v Briginshaw
[1938] HCA 36

…A v. A [1976] VR 298 Amador & Amador [2009] FamCAFC 196 B v B (Access) [1986] FLC ¶ Briginshaw v Briginshaw (1938) 60 CLR 336 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 Goode v Goode (2007) 36 Fam LR 422 In re G (a minor) [1987] 1 WLR 1461 Johnson & Page (2007) FLC ¶93-344 Leveque v Leveque (1983) 54 BCLR 164 M v M (1988…
Briginshaw v Briginshaw
[1938] HCA 34 Para 4

…unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given descriptio…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
[1992] HCA 66 Para 14

…t useful at this point of our discussion to refer to the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 in discussing standard of proof The ordinary standard of proof required of a party who bears the onus…
Goode v Goode
[2006] FMCA 13496 Para 3

…and unrefuted evidence, the Court is in almost no position to make any relevant findings.[4] [4] Cf. the Full Court’s observation to like effect in Goode v Goode (2007) 36 Fam LR 422 at p.445 [82(d)].…
[1987] 1 WLR 1461
[1987] 1 WLR 1461 Para 5

…1986] FLC ¶91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 BCLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) [1987] 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In dev…
Leveque v Leveque
1 WLR 1461 Para 5

…The High Court went on to make the following further observations in relation to “unacceptable risk”:[16] [24] In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that r…
Mazorski v Albright
(2007) 37 FLR 518

…[1987] 1 WLR 1461 Johnson & Page (2007) FLC ¶93-344 Leveque v Leveque (1983) 54 BCLR 164 M v M (1988) 166 CLR 69 Marriage of M (1987) 11 Fam LR 765 Mazorski v Albright (2008) 37 Fam LR 518 McCall & Clarke (2009) 41 Fam LR 483 Moose & Moose (2008) FLC ¶93-375 N v S (1995) Fam LR 837 Napier v Hepburn (2007) 36 Fam LR 395; (200…

Legislation cited in this decision · 2

Evidence Act 1995 (Cth)
140 2 mentions (from Para 14)
Family Law Act 1975 (Cth)
1 mention (from Para 4)