Madden and Callanan

Case [2016] FCCA 59

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADDEN & CALLANAN [2016] FCCA 59
Catchwords:
FAMILY LAW – Interim parenting – where children manifesting serious sexualised behaviours – where disclosures made – whether unacceptable risk of harm or abuse in spending time with the father – transfer to Family Court of Australia at Sydney.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60D, 61DA, 64(1), 65DAA,69ZT(3), 69ZV, 100A
Evidence Act 1995 (Cth), s.140
A v A (1976) VR 298
B & B (1986) FLC 91-758
B & B: Family Law Reform Act 1995(1997) FLC 92-755
Briginshaw v Briginshaw (1938) 60 CLR 336
Brown and Pedersen (1992) FLC 92-271
Goode & Goode (2006) FLC 93-286
Leveque v Leveque (1983) 54 BCLR 164
M & M (1988) 166 CLR 69
M & M (1987) FLC 91-830
McKee v McKee (1951) AC 352
MRR v GR [2010] HCA 4
N & S & the Separate Representative(1996) FLC 92-655
re G. (a minor) (1987) 1 WLR 1461
Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768
Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318
S v S [1993] NZFLR 657
TF and JF and Children’s Representative [2005] FamCA 394
V & V[2004] FamCA 1081
Vasser & Taylor-Black [2007] FamCA 547
W and W (abuse allegations: unacceptable risk) [2005] FamCA 892
WK v SR (1997) FLC 92-787
Applicant: MS MADDEN
Respondent: MR CALLANAN
File Number: WOC 1081 of 2015
Judgment of: Judge Altobelli
Hearing date: 8 December 2015
Date of Last Submission: 8 December 2015
Delivered at: Wollongong
Delivered on: 22 January 2016

REPRESENTATION

Counsel for the Applicant: Ms Doosey
Solicitors for the Applicant: Rossi Simicic Lawyers
Counsel for the Respondent: Ms Gillies
Solicitors for the Respondent: T H Walker Solicitors
Solicitors for the Independent Children's Lawyer: DGB Lawyers

ORDERS

  1. The parents shall have equal shared parental responsibility for the children X, born (omitted) 2008 and Y, born (omitted) 2010 (hereafter referred to as "the children").

  2. The children shall live with the mother.

  3. The children shall spend the following time with the father:

    (a)From 8.00 am each Monday until the commencement of school on Wednesday or 9.00 am for Y or until 9.00 am on any day when the child X is not required to attend school;

    (b)On the children's birthdays, as agreed between the parents, but failing agreement between the parents as follows:

    (i)From the conclusion of school until 5.30 pm on 13 July 2016; and

    (ii)From 10.00 am until 2.00 pm on 28 August 2016.

    (c)From 2.00 pm on 25 December until 10.00 am on 26 December 2015.

    (d)Such additional time as may be agreed between the parents from time to time.

  4. Unless otherwise agreed between the parents changeover of the children for the purposes of Order 3 is to occur with the father collecting the children from the mother's residence at the commencement of the father's time with the children and with the mother collecting the children from…

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AGLC
Madden and Callanan [2016] FCCA 59
Case
[2016] FCCA 59
Decision Date

CaseChat Overview and Summary

In *Madden and Callanan*, heard by Judge Altobelli, the court was required to make orders concerning the parental responsibility, living arrangements, and time spent with the children of the parties. The dispute centred on how the parents would share responsibility for their two children, X and Y, and the specific arrangements for their daily care and communication.

The legal issues before the court included determining the nature of parental responsibility, establishing the primary residence of the children, and defining the time each parent would spend with them. The court also had to consider orders relating to communication between the children and their parents, restrictions on medical and therapeutic interventions, and prohibitions on discussing court proceedings with the children. Further issues involved authorising the Independent Children's Lawyer to make enquiries, restricting the mother's relocation of the children, mandating parenting programs, and imposing restraints on contact with specific family members.

The court ordered that the parents share equal parental responsibility for the children, with the children to live with the mother. Specific provisions were made for the father's time with the children, including weekday arrangements, time on birthdays, and Christmas. The orders also stipulated how changeovers would occur, facilitated communication between the children and the father, and imposed significant restrictions on each parent regarding medical treatments, discussions about court proceedings, and contact with the paternal grandfather and uncle. The Independent Children's Lawyer was authorised to gather information from relevant authorities and schools. The proceedings were subsequently transferred to the Family Court of Australia for further directions.

Orders

Orders of the court

1.

The parents shall have equal shared parental responsibility for the children X, born (omitted) 2008 and Y, born (omitted) 2010 (hereafter referred to as "the children").

2.

The children shall live with the mother.

3.

The children shall spend the following time with the father:

(a) From 8.00 am each Monday until the commencement of school on Wednesday or 9.00 am for Y or until 9.00 am on any day when the child X is not required to attend school;

(b) On the children's birthdays, as agreed between the parents, but failing agreement between the parents as follows:

(i) From the conclusion of school until 5.30 pm on 13 July 2016; and

(ii) From 10.00 am until 2.00 pm on 28 August 2016.

(c) From 2.00 pm on 25 December until 10.00 am on 26 December 2015.

(d) Such additional time as may be agreed between the parents from time to time.

4.

Unless otherwise agreed between the parents changeover of the children for the purposes of Order 3 is to occur with the father collecting the children from the mother's residence at the commencement of the father's time with the children and with the mother collecting the children from the father's residence at the conclusion of the father's time with the children.

5.

The children shall communicate with the father by Skype or telephone between 4.30pm and 5.00pm on each Thursday and Saturday with the father to initiate the communication and the mother to ensure that the children are available to communicate with the father.

6.

Each parent shall assist the children to have telephone or other communication with the other parent at any time the children request to communicate with the other parent.

7.

Each parent 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 other parent unless:

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

(b) the attendance is in accordance with the direction of recommendation made by Family and Community Services or NSW Police.

8.

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

9.

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.

10.

The Independent Children's Lawyer shall be hereby authorised to make enquiries with Family and Community Services and NSW Police for the purpose of obtaining information concerning any reports, notifications, and/or investigations involving the children.

11.

The Independent Children's Lawyer shall be hereby authorised to make enquiries with X’s school and Y's school for the purpose of obtaining information concerning the children.

12.

The mother shall not relocate the children to live more than twenty (20) kilometres away from the mother's current residence in (omitted) unless agreed to between the parents in writing.

13.

Each parent shall forthwith enrol in and complete a parenting after separation program coordinated by Relationships Australia or such other parenting after separation program as may be agreed upon by the parents and the Independent Children's Lawyer.

14.

That the parties be restrained from bringing the children into contact with the paternal grandfather namely Mr G and the paternal uncle namely Mr D.

15.

The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before a Registrar on 24 March 2016 at 9:30am, with a recommendation that the matter go into the (omitted) Program list.

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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