MACIK & JANSON - [2020] FamCA 743

FAMILY COURT OF AUSTRALIA

MACIK & JANSON

[2020] FamCA 743

FAMILY LAW – CHILDREN – Interim parenting – Where proceedings relate to the care of the parties’ son and the mother’s daughter from a previous relationship – Where mother alleges daughter made various disclosures of being sexually abused by father – Where mother seeks orders that the children live with her and spend no time with the father on the basis that the father may sexually abuse one or both of the children – Where father denies allegations of sexual abuse made against him and contends he does not pose an unacceptable risk of harm to the children on any basis – Where father ultimately sought supervised time with both children – Where Joint Child Protection Response Program (“JCPRP”) investigated allegations of sexual abuse – Where there are inconsistencies observed in the disclosures said to have been made by daughter – Where allegations of sexual abuse against father not substantiated by JCPRP – Where in the circumstances it is unlikely that a court will find that father poses an unacceptable risk of harm to the children on the basis of sexual abuse – Where there is a real risk that relationship between the father and children will be placed in jeopardy if orders are made as sought by mother – Where there is a benefit to both children maintaining a relationship with the father but father’s proposal does not properly consider the necessary therapeutic support or supervision for children’s time with him to commence – Where, in light of practical difficulties and the current status of each child’s relationship with the father, it is appropriate to make orders largely in the terms sought by the ICL that the son spend limited supervised time with the father.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Ms Macik

RESPONDENT:

Mr Janson

INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

FILE NUMBER:

PAC

930

2020

DATE DELIVERED:

7 September 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

21 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Wesley Community Legal Service

COUNSEL FOR THE RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE RESPONDENT:

Cameron Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

Orders

Pending further order

The mother has sole parental responsibility for the child X born … 2013.
X and Y born … 2019 are to live with the mother.
Y is to spend time with the father for at least three hours per fortnight at times and on days as suitable to a private supervision service to be engaged by…

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 MACIK & JANSON

Details

AGLC: MACIK & JANSON [2020] FamCA 743
Case: [2020] FamCA 743
Decision Date: 7 September 2020

CaseChat Overview and Summary

In the matter of MACIK & JANSON, Hannam J of the Federal Circuit Court of Australia considered a dispute concerning the parenting arrangements for three children. The proceedings involved applications by both the mother and the father regarding the children's residence and the father's contact with them.

The court was required to determine the appropriate parenting orders, specifically addressing issues of parental responsibility, the children's living arrangements, and the nature and extent of the father's time with one of the children. A key consideration was the need for supervised contact between the father and the child Y, and the arrangements for such supervision.

Hannam J made orders reflecting a determination of the children's best interests. The mother was granted sole parental responsibility for child X, and children X and Y were ordered to live with the mother. Child Y was to spend time with the father for a minimum of three hours per fortnight, with this contact to be supervised by a service agreed upon by the parties or nominated by the Independent Children's Lawyer if agreement could not be reached. The father was to bear the costs of this supervision. The previous order restraining the father from attending within 50 metres of the children's residence was discharged.

Orders

Orders of the court

Pending further order

The mother has sole parental responsibility for the child X born … 2013.

X and Y born … 2019 are to live with the mother.

Y is to spend time with the father for at least three hours per fortnight at times and on days as suitable to a private supervision service to be engaged by the parties for the purposes of supervision of Y’s time with the father, which is to commence on the first available date offered by the service.

For the purposes of Order (3) the father’s time shall be supervised by a service as agreed between the parties, and if no agreement can be reached between them, as nominated by the Independent Children’s Lawyer.

The parties are to do all acts and things required of them as soon as practicable to engage the supervision service, and all such fees and costs associated with using this service are to be paid by the father.

Order (1)(c) of orders dated 30 April 2020 restraining the father from attending or being within 50 metres of any address at which the children are residing, is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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