Madden and Callanan - [2020] FamCA 28

FAMILY COURT OF AUSTRALIA

MADDEN & CALLANAN

[2020] FamCA 28

FAMILY LAW – CHILDREN – Unacceptable risk of sexual harm to children alleged by mother from the father, paternal grandfather and paternal uncle – Where the mother alleges the children demonstrate hypersexualised behaviours and supports the belief that the only basis for this behaviour is that the children were sexually abused by the father, paternal grandfather and paternal uncle – Where there is no evidence to support a finding that the children were sexually abused by the father or the paternal family – Where there is no evidence to support a finding that the children are at any risk in the care of the father or the paternal family – Where there is a positive finding of no risk of sexual harm or any other unacceptable harm to the children from the father or the paternal family – Where the risk of harm to children is the mother’s erroneous belief of the reasons for the children’s behaviour – Where the mother’s application that the father spend supervised time with the children four times a year is dismissed – Children to spend day time only with the mother for a period of time after which overnight time will be introduced – Sole parental responsibility granted to the father.

Family Law Act 1975 (Cth), ss 60CC(2), 60CC(3)

B & B (1993) FLC 92-357
Goode v Goode [2006] FamCA 1346
M v M (1988) 166 CLR 69
Massey & Wilenski [2019] FamCA 657
Wolleman & Wolleman [2019] FamCAFC 107

APPLICANT:

Ms Madden

RESPONDENT:

Mr Callanan

INDEPENDENT CHILDREN’S LAWYER:

DGB Lawyers

FILE NUMBER:

WOC

1081

2015

DATE DELIVERED:

24 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

14, 15, 16, 17, 18 and 31 October 2019, 1 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-Represented Litigant

COUNSEL FOR THE RESPONDENT:

Mr Guterres

SOLICITOR FOR THE RESPONDENT:

Barnes Law Group Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER :

Mr Grew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER :

DGB Lawyers

Orders

All previous parenting orders in relation to the children X born … 2008 and Y born … 2010 are discharged.
The father have sole parental responsibility for X and Y.
The children live with the father.
The children spend time with the mother as follows:
(a)From the commencement of these Orders until the first Saturday in March 2020, from 10am to 5pm on each Saturday;
(b)From the first Saturday in March 2020 until the first Saturday in April 2020, each Saturday from 9am until 10am the following Sunday morning;
(c)From the first Saturday in May 2020, each Saturday from 9am until school commences on the following Monday morning; and
(d)From the first Friday in June 2020, each Friday from after school until school commences the following Monday morning.
Where changeover is not at school the mother will collect and return the children to and from the father’s residence.
The time specified in Orders 4 (c) &…

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 Madden and Callanan

Details

AGLC: Madden and Callanan [2020] FamCA 28
Case: [2020] FamCA 28
Decision Date: 24 January 2020

CaseChat Overview and Summary

In the matter of Madden and Callanan, Henderson J considered parenting orders concerning two children, X and Y. The dispute involved the arrangements for the children's residence, time spent with each parent, and related matters.

The court was required to determine the primary issues of parental responsibility, the children's living arrangements, and the specific time each parent would spend with the children. Additionally, the court addressed issues concerning communication between parents, the children's involvement with health professionals and therapists, and arrangements for overseas travel.

Henderson J made extensive orders, discharging previous parenting orders and granting the father sole parental responsibility for X and Y. The children were ordered to live with the father, with specific, progressively increasing periods of time allocated for the mother. The orders also detailed arrangements for school holidays and Christmas, including provisions for communication, the children's education, and their participation in therapy. Crucially, the court imposed significant restrictions on the mother's ability to arrange medical or therapeutic appointments for the children without the father's written consent, with specific exceptions. The orders also included detailed protocols for overseas travel and the issuance of travel documents, and restrained both parents from denigrating each other or discussing court proceedings with the children. The Independent Children's Lawyer's appointment was discharged, subject to any obligations under the new orders and pending any appeal.

Orders

Orders of the court

All previous parenting orders in relation to the children X born … 2008 and Y born … 2010 are discharged.

The father have sole parental responsibility for X and Y.

The children live with the father.

The children spend time with the mother as follows:

(a) From the commencement of these Orders until the first Saturday in March 2020, from 10am to 5pm on each Saturday;

(b) From the first Saturday in March 2020 until the first Saturday in April 2020, each Saturday from 9am until 10am the following Sunday morning;

(c) From the first Saturday in May 2020, each Saturday from 9am until school commences on the following Monday morning; and

(d) From the first Friday in June 2020, each Friday from after school until school commences the following Monday morning.

Where changeover is not at school the mother will collect and return the children to and from the father’s residence.

The time specified in Orders 4 (c) & (d) is to continue during the school holidays up to the third term school holidays in 2020.

Commencing from the third term school holidays in 2020 the children shall reside with the mother in the first half of each short school term holiday period until 3pm on the midpoint of the holiday period in odd numbered years and in the second half of each short school term holiday period in even numbered years.

The children shall reside with the father in the first half of each short school term holiday period until 3pm on the midpoint of the holiday period in even numbered years and in the second half of each short school term holiday period in odd numbered years.

For the purpose of these Orders, the school holidays will be deemed to include any pupil free days held by the school.

10.

From the first Christmas school holidays following the date of these Orders, the Children shall reside with the parents as agreed between the parties, and failing agreement as follows:

(a) In odd numbered years:

(i) With the mother from the commencement of the Christmas school holidays until 10am on 24 December;

(ii) With the father from 10am on 24 December until 3pm on Christmas Day 25 December;

(iii) With the mother from 3pm on 25 December until 3pm on 26 December;

(iv) With the father from 3pm on 26 December until 10am on 9 January;

(v) With the mother from 10am on 9 January until 10am on 23 January;

(vi) With the father from 10am on 23 January until the commencement of school.

(b) In even numbered years:

(i) With the mother from the commencement of the Christmas school holidays until 3pm on 25 December;

(ii) With the father from 3pm on 25 December until 10am on 9 January;

(iii) With the mother from 10am on 8 January until 10am on 23 January;

(iv) With the father from 10am on 23 January until the commencement of school or as otherwise agreed.

11.

To implement school holiday time if the children are not otherwise being collected from school, the parent into whose care they are to come shall collect them from the other parent.

12.

Notwithstanding anything elsewhere contained in these Orders the children shall spend time:

(a) With the father:

(i) from 10am to 5pm on Father’s Day each year;

(ii) if not otherwise in their father’s care on each child’s birthday from after school to 8pm on a school day and from 12 noon to 6pm on a weekend day unless otherwise agreed.

(b) With the mother:

(i) from 10am to 5pm on Mother's Day each year;

(ii) if not otherwise in their mothers care on each child’s birthday from after school to 8pm on a school day and from 12 noon to 6pm on a weekend day unless otherwise agreed.

13.

Unless otherwise agreed between the parties, changeover for the children for the purposes of Order 12, the party who is to spend time with the children shall collect the children from the other party or school at the commencement of their time and shall return the children at the conclusion of their time.

14.

The parties shall ensure that the children are contactable by telephone as is reasonably practicable to speak with the parent with whom they are not residing at all times and at the request of the child shall ensure the children can FaceTime, Skype or telephone the other parent on any occasion.

15.

The mother shall be restrained from making arrangements for the children to attend upon any health professional or therapist, including but not limited to, any general practitioner, counsellor, psychologist or psychiatrist, without the written consent of the father unless:

(a) The attendance is in accordance with a written direction or recommendation made by Family and Community Services or NSW Police; or

(b) The attendance is upon a general practitioner nominated by the father and is for the treatment of minor illnesses or ailments such as cold or flu.

16.

The father is permitted to provide a copy of these Orders and Reasons for Judgment to any treating health practitioner of the children at his discretion and the children’s school.

17.

The Independent Children’s Lawyer may provide a copy of these Orders and Reasons for Judgment to the Department of Family and Community Services with a request that these documents be placed on the children’s file with that department.

18.

The mother shall be restrained from recording any conversations with the children which relate to matters raised as issues in these Court proceedings.

19.

Each party shall be restrained from discussing any matters relating to these Court proceedings with the children and from showing the children any documents relating to these Court proceedings.

20.

Each of the parties are restrained from:

(a) Denigrating the other party or their extended family or new partners (if any) in the presence or hearing of the children.

(b) Discussing financial arrangements between the parties or any disputes between the parties, including but not limited to these proceedings with the children.

(c) Allowing the children to be in the presence or hearing of any other person denigrating the other parent or any member of the other parent’s extended family.

21.

That the children continue to be enrolled in E School until the conclusion of primary school unless otherwise agreed.

22.

If the mother files any further parenting proceedings such application is to be listed before Justice Henderson initially.

23.

The Independent Children’s Lawyer shall provide to Ms H and Dr B a copy of the Court’s Orders and Reasons for Judgment.

24.

The father shall facilitate the children’s participation in therapy with Dr B no less than once every 6 months until Dr B informs the father that this is no longer necessary.

25.

Each party shall comply with the recommendations of Dr B in relation to the children’s therapy including attendance at sessions with Dr B, as directed or requested by Dr B.

26.

For the purposes of the children’s therapy with Dr B, the parties shall be responsible in equal shares for the costs of the children’s attendance upon Dr B and each party shall be pay the costs of any individual consultations with Dr B, as directed or requested by Dr B.

27.

The mother, at her expense, shall continue to attend regular therapy sessions with Ms H until such time as Ms H determines this is no longer necessary.

28.

In the event the mother seeks to raise concerns about risk to the children in the father’s care the following process shall apply:

(a) The mother shall discuss the matter with Ms H or such other therapist with whom she is engaged;

(b) The mother’s therapist may convey the mother’s concern to Dr B; and

29.

Each party notify the other, as soon as possible and in any event within 24 hours, of any serious injury or illness suffered by the children whilst in the care of that party.

30.

Each party notify the other party in writing (by way of text message or email) in the event that either child is not attending school (with such notice to be provided by 10am on the morning of each day of non-attendance if as a result of illness or at least 24 hours prior if such non-attendance is for any other reason), where practicable.

31.

Each party shall notify the other:

(a) Of all changes to his or her residential address, mobile telephone(s) and email address within 24 hours of all changes to the same; and

(b) As soon as reasonably practicable on becoming aware of the children or any of them, being involved in a medical emergency.

32.

Each party shall keep the other party informed at the earliest opportunity of all medical and health issues affecting any and all of the children including any and all medical treatment that has been obtained, sought or is required for either child.

33.

Forthwith upon the making of these Orders and continuously thereafter, the parties shall each provide all authorities and shall give all necessary consents to ensure that each child's treating medical practitioners are authorised and directed to communicate with, and provide information and copies of documents directly to, each of the parties upon either party's respective request and at the requesting party's own cost.

34.

Forthwith upon the making of these Orders and continuously thereafter, the parties shall provide all authorities and shall give necessary consents to ensure that the principal of each child's school (and thereafter each child's school teachers) are authorised and directed to communicate with, and provide information and copies of documents directly to each of the parties upon either party's respective request and at the requesting party's own cost.

35.

Pursuant to Order 34, that each of the parents is authorised by these Orders:

(a) To obtain from the children’s school copies of their school reports and developmental assessments and other information regarding the children’s academic progress and development;

(b) Attend events at the children’s school to which parents are usually invited; and

36.

Each of the parties be at liberty to attend the children’s school events and sporting competitions and fixtures, excluding training, regardless of whose care the children are in pursuant to these Orders.

37.

The Independent Children’s Lawyer may explain these Orders to the children if in her opinion this is necessary.

38.

Pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth) both parties be permitted to temporarily take the children from the Commonwealth of Australia for the purposes of overseas travel and holidays provided that:

(a) The travel takes place, unless otherwise agreed between the parties in writing, during school holiday periods that the children are with the travelling parent pursuant to these Orders;

(b) The party proposing overseas travel gives to the other party, at least 6 weeks in advance of the proposed travel, written details of the names of places outside of the Commonwealth of Australia where the children will be travelling (being countries, cities and towns);

(c) The party proposing overseas travel gives to the other party, at least 6 weeks in advance of the proposed travel, written details of the departure and arrival dates to and from each country to which it is intended travel will occur;

(d) Not less than 2 weeks in advance of the proposed travel, the party taking or sending the children outside of the Commonwealth of Australia must provide to the other party a photocopy of all return airline and/or shipping tickets for each child evidencing each child's return to the Commonwealth of Australia together with copies of all written itineraries;

(e) Not less than 2 weeks in advance of the proposed travel, the party taking or sending the children outside of the Commonwealth of Australia must provide to the other party written notice of the contact telephone numbers and addresses of all places where the children will be staying overnight when outside of the Commonwealth of Australia;

(f) The party proposing the overseas travel must ensure each child travelling outside of the Commonwealth of Australia is covered by a valid travel insurance policy for the duration of travel outside of Australia and a copy of such policy shall be provided to the other party not less than 2 weeks prior to the proposed travel.

39.

The father will retain the passports for the children and will provide all necessary passports to the mother for the purposes of facilitating any overseas travel for the children pursuant to these Orders at least 7 days prior to the proposed departure date (unless the passport is required earlier to enable appropriate travel documentation to be obtained), with the mother to return the passports to the father within 48 hours of her return to Australia.

40.

It is declared that X born … 2008 and Y born … 2010, permanent and habitual place of residence is the Commonwealth of Australia.

41.

Pursuant to section 11(1)(a) of the Australian Passports Act 2005, the parties consent to X born … 2008 and Y born … 2010 having or being issued with an Australian travel document.

42.

Pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 and these Orders, X born … 2008 and Y born … 2010 are permitted to travel outside the Commonwealth of Australia using an Australian travel document.

43.

That the parties will do all acts and things and sign all documents, within 7 days of being requested to do so, necessary to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable X born … 2008 and Y born … 2010 to be issued with an Australian travel document.

44.

In the event that a party refuses or neglects to sign any document necessary to issue X born … 2008 and Y born … 2010 with an Australian travel document, such refusal will constitute sufficient special circumstances for the father to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document pursuant to section 11(2)(a) of the Australian Passports Act 2005.

45.

The Order appointing the Independent Children’s Lawyer is discharged, save for carrying out any obligations placed upon them pursuant to these Orders and pending any appeal of this matter.

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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