Malave & Ratcliffe - [2015] FCCA 201

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALAVE & RATCLIFFE

[2015] FCCA 201

Catchwords:
FAMILY LAW – Parenting – alleged severe alienation – alleged neglect and abuse – high conflict case – whether change of residence in child’s best interests – how relationship with mother can best be restored.

FAMILY LAW – Property – 22 year relationship – husband having care of children.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 72(1), 75(2), 79(2), 79(4)

Cases cited:
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Irish v Michelle [2009] FamCA 66
Pavli v Beffa (2013) 48 Fam LR 677; [2013] FamCA 144
Re David (1997) 22 Fam LR 489; (1997) FLC 92-776
Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 47 Fam LR 481; [2012] HCA 52

Articles, papers and books:

Altobelli T, ‘When a child rejects a parent: Why children resist contact’ (2011) 25 Australian Journal of Family Law 185

Baker A J L, ‘The Long-Term Effects of Parental Alienation on Adult Children: A Qualitative Research Study’ (2005) 33 The American Journal of Family Therapy 289

Cox M, Bridging the gap on parental alienation: A survey for legal and mental health professionals in family law (Psy.D. dissertation, Alliant International University, Los Angeles, California, 2010) Dissertations and Theses: Full Text. Publication No. AAT 3421110

Diagnostic and Statistical Manual of Mental Disorders (5^th Ed)

Fidler B J and Bala N, ‘Children Resisting Postseparation Contact With A Parent: Concepts, Controversies, and Conundrums’ (2010) 48(1) Family Court Review 10

Gardner R A, ‘Should Courts Order PAS Children to Visit/Reside With the Alienated Parent? A Follow-up Study’ (2001) 19(3) The American Journal of Forensic Psychology 61

Gardner R A, The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals (Creative Therapeutics Inc, 2^nd edition, 1998)

Papaleo V and Di Stefano T, ‘Something Old, Something New, and Something Borrowed: Considering Parental Alienation from a Different Perspective’ (paper presented at Family law Conference: Reclaiming the Ground, New Zealand Law Society Family Law Conference, New Zealand, 2013)

Saini M, Johnston J R, Fidler B J and Bala N, Chapter 13, ‘Empirical Studies of Alienation’ in Kathryn Kuehnle and Leslie Drozd (eds), Parenting Plan Evaluations: Applied Research for the Family Court (Oxford University Press 2012) 399

Applicant:

MS MALAVE

Respondent:

MR RATCLIFFE

File Number:

MLC 5843 of 2012

Judgment of:

Judge Riley

Hearing dates:

3, 4, 5, 10, 11, 12, 15 and 24 December 2014

Date of last submission:

24 December 2014

Delivered at:

Melbourne

Delivered on:

5 February 2015

REPRESENTATION

Counsel for the applicant:

Mr Williams

Solicitors for the applicant:

Pearsons Lawyers Pty Ltd

Counsel for the respondent:

Mr A Combes

Solicitors for the respondent:

Alpass & Associates

Counsel for the independent children’s lawyer:

Mr Marchetti

Solicitors for the independent children’s lawyer:

Victoria Legal Aid

ORDERS

The mother and father have equal shared parental responsibility for [X], born on [omitted] 2004 (“[X]”) in relation to major long term issues about:
(a)[X]’s name; and
(b)changes to…

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 Malave & Ratcliffe

Details

AGLC: Malave & Ratcliffe [2015] FCCA 201
Case: [2015] FCCA 201
Decision Date: 5 February 2015

CaseChat Overview and Summary

In a family law matter before Judge Riley, the court considered a dispute between a mother and father concerning their child, [X], and also addressed property division following a 22-year relationship where the father had primary care of the children. The proceedings involved allegations of severe alienation, neglect, and abuse, and were characterised as a high-conflict case. The central parenting issue was whether a change of residence for [X] was in her best interests and how her relationship with her mother could best be restored.

The court was required to determine the most appropriate parenting arrangements for [X], considering the allegations and the high-conflict nature of the parents' relationship. This included deciding on the allocation of parental responsibility for major long-term issues, where [X] should live, and the terms of her time with each parent. Additionally, the court had to resolve the division of property and debts accumulated during the parties' long-term relationship.

Judge Riley ordered that the parents share equal responsibility for decisions regarding [X]'s name and significant changes to her living arrangements that impact her time with a parent. However, the father was granted sole responsibility for all other major long-term issues, including education, religious and cultural upbringing, and health, subject to a requirement to consult with and genuinely attempt to agree with the mother, with the father having the final decision if agreement could not be reached. [X] was ordered to live with her father. The court also made detailed orders for [X] to spend time with her mother, with a phased increase in duration, and mandated the engagement of a Ms B to assist in reunifying [X] with her mother, with both parents and the children to attend upon Ms B as directed. The court further ordered that the proceeds of sale of the former family home be distributed with the husband receiving 65% and the wife 35%, and each party was to be solely responsible for their respective debts. Restraints were placed on both parents regarding abusive or critical behaviour towards each other in the presence of [X], and on the mother regarding corporal punishment or verbal abuse of [X]. The appointment of the independent children's lawyer was to be discharged on 5 February 2016.

Orders

Orders of the court

The mother and father have equal shared parental responsibility for [X], born on [omitted] 2004 (“[X]”) in relation to major long term issues about:

(a) [X]’s name; and

(b) changes to the [X]’s living arrangements that make it significantly more difficult for [X] to spend time with a parent.

The father have sole parental responsibility for [X] in relation to all other major long term issues including:

(a) [X]’s education (both current and future);

(b) [X]’s religious and cultural upbringing; and

on the conditions that:

(d) the father contact the mother in writing and provide his views about any such issue;

(e) the father consult with the mother with regard to any such issue;

(f) the father and mother make a genuine effort to come to a joint decision about any such issue; and

(g) if no agreement is reached between the parents, then within 14 days the father make the final decision and advise the mother in writing of the decision about any such issue.

[X] live with her father.

Within seven days:

(a) the independent children’s lawyer provide a copy of these orders and reasons to Ms B; and

(b) the mother and father take all steps necessary to engage the services of Ms B to assist them to reunify [X] with her mother.

The mother, the father, [X], [Y], born on [omitted] 1997 (“[Y]”), and [Z], born on [omitted] 2001 (“[Z]”), and, if they wish, [V], born on [omitted] 1993 (“[V]”), and [W], born on [omitted] 1994 (“[W]”), attend upon Ms B as she directs.

The mother, the father, [X], [Y] and [Z] and, if they wish, [V] and [W] attend such courses or counsellors as Ms B directs.

Each parent provide a copy of these orders and reasons to any counsellor if Ms B so directs.

The mother and father pay in equal shares the costs of their and any of the children’s attendances on Ms B, and any course or counsellor she directs any of the children to attend.

The mother pay the costs of any course or counsellor Ms B directs her to attend individually.

10.

The father pay the costs of any course or counsellor Ms B directs him to attend individually.

11.

The father be restrained from allowing [X] to attend upon Ms S unless Ms B recommends otherwise.

12.

[X] spend time with her mother:

(a) between 2pm and 4pm each Saturday commencing on 8 August 2015;

(b) between 1pm and 6pm each Saturday commencing on 5 September 2015;

(d) between 10am each alternate Saturday to 6pm the immediately following Sunday commencing 31 October 2015; and

(e) such other or additional times as the parents may agree.

13.

Changeover occur outside Coles at the [omitted] Shopping Centre or otherwise as the parents may agree.

14.

Until further order, the father be restrained from abusing, insulting, belittling, rebuking or criticising the mother to or in the presence or hearing of [X] and from permitting any other person to do so.

15.

Until further order, the mother be restrained from abusing, insulting, belittling, rebuking or criticising the father to or in the presence or hearing of [X] and from permitting any other person to do so.

16.

The mother be restrained from hitting [X] or using any form of corporal punishment against her.

17.

The mother be restrained from verbally abusing [X].

18.

The appointment of the independent children’s lawyer be discharged on 5 February 2016.

19.

The proceeds of sale of the former family home be distributed between the parties so that the husband receives 65% and the wife receives 35% of the proceeds.

20.

The husband and wife each be solely responsible for the debts in their respective names.

21.

Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of that party as at the date of these orders;

(b) monies standing to the credit of each party in any bank account be deemed to be in that person’s possession;

(d) insurance policies remain the sole property of the beneficiary named therein;

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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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