Massey and Wilenski - [2019] FamCA 657

FAMILY COURT OF AUSTRALIA

MASSEY & WILENSKI

[2019] FamCA 657

FAMILY LAW – CHILDREN – Best interests – allocation of parental responsibility – allegations the child has been sexually abused by the father – where the mother alleges the father presents an unacceptable risk of harm to the child – finding on the balance of probabilities no evidence of sexual abuse by the father and the father does not present an unacceptable risk of harm to the child – where the mother does not have the capacity to facilitate a meaningful relationship between the father and the child – where there is a risk of ongoing psychological harm to the child if the child continues to reside with the mother – order that the father have sole parental responsibility and the child live with the father – order that the mother spend no time with the child for a period.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZT

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404

APPLICANT:

Ms Massey

RESPONDENT:

Mr Wilenski

INDEPENDENT CHILDREN’S LAWYER:

Creative Family Law Solutions

FILE NUMBER:

MLC

10913

2015

DATE DELIVERED:

13 September 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

4, 5, 6, 7, 8, 12 and 13 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Dunlop

SOLICITOR FOR THE RESPONDENT:

Trapski Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stavrakakis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Creative Family Law Solutions

Orders

(1)That all previous parenting orders be discharged.
(2)That the Father have sole parental responsibility for the child X born … 2010 (“the child”) PROVIDED ALWAYS THAT the Father keep the Mother informed of significant long term decisions that he makes in relation to the child and actively seeks her input on such issues.
(3)For the purpose of Order 2 hereof:-
(a)Before any such long term decisions are made in respect of the child, save in the event of a medical emergency:-
(i)     The Father shall advise the Mother by email of his proposal relating to the child;
(ii)    If the Mother wishes to comment on the Father’s proposal (or if she has any proposal she wishes to make relating to the child on this issue) she shall, within seven (7) days after the date of the Father’s email, advise the Father by email (to the email address from which the Father sent her communication) of her views;
(iii)   Upon receipt of any comment or proposal by the Mother the Father shall give consideration to her views;
(iv)   After the Father has considered the Mother’s comments, he shall make a decision and advise the Mother by email or SMS text message of the outcome…

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 Massey and Wilenski

Details

AGLC: Massey and Wilenski [2019] FamCA 657
Case: [2019] FamCA 657
Decision Date: 13 September 2019

CaseChat Overview and Summary

This matter came before Johns J concerning parenting orders for a child born in 2010. The dispute involved the father and mother, with the court ultimately making orders regarding the child's living arrangements, time spent with each parent, and parental responsibilities.

The court was required to determine the primary caregiver for the child, the extent of each parent's involvement in decision-making, and the specific arrangements for the child's time with each parent. Additionally, the court addressed the need for therapeutic intervention for the mother and assessment of the child's needs by a paediatrician.

Johns J ordered that the father have sole parental responsibility for the child, with specific provisions for the father to keep the mother informed and seek her input on significant long-term decisions. The child was ordered to live with the father, and detailed arrangements were made for the child's time with the mother, which were conditional upon supervised contact and changeovers, and the mother's engagement with a psychologist. The father was also directed to engage a paediatrician for assessment. The court also made orders regarding communication, the exchange of information, and a restraint on denigrating the other parent. Injunctions were also made against the mother regarding communication with and removal of the child, and attendance upon a specific individual.

Orders

Orders of the court

(1) That all previous parenting orders be discharged.

(2) That the Father have sole parental responsibility for the child X born … 2010 (“the child”) PROVIDED ALWAYS THAT the Father keep the Mother informed of significant long term decisions that he makes in relation to the child and actively seeks her input on such issues.

(3) For the purpose of Order 2 hereof:-

(a) Before any such long term decisions are made in respect of the child, save in the event of a medical emergency:-

(i) The Father shall advise the Mother by email of his proposal relating to the child;

(ii) If the Mother wishes to comment on the Father’s proposal (or if she has any proposal she wishes to make relating to the child on this issue) she shall, within seven (7) days after the date of the Father’s email, advise the Father by email (to the email address from which the Father sent her communication) of her views;

(iii) Upon receipt of any comment or proposal by the Mother the Father shall give consideration to her views;

(iv) After the Father has considered the Mother’s comments, he shall make a decision and advise the Mother by email or SMS text message of the outcome immediately after making that decision; and

(v) If the Mother does not respond by email as provided in order 3(a)(ii) hereof, the Father shall be entitled to presume that the Mother does not wish to be involved and he may decide the issue.

(4) The Father advise the Mother by email of:-

(a) A nominated mainstream medical clinic (“the nominated clinic”) at which the child attends for general medical care and each of the parties shall ensure that the child attend that clinic for treatment at first instance, save in the case of genuine emergency or impracticality; and

(b) Any changes to that nominated clinic at least fourteen (14) days prior to such change occurring.

(5) The Father do all such acts and things as may be necessary to ensure that the Mother receives copies of any medical and academic assessments in relation to the child.

(6) Liberty is granted to the Mother to consult with the child’s doctors and allied health professionals in order to obtain information about the child’s health, such consultations to be at the Mother’s own expense and in the absence of the child.

(7) The child live with the Father.

(8) The child spend time with the Mother as follows:-

(a) As and from 30 November 2019:-

(i) For 5 hours as agreed pursuant to paragraph 9 below, and in default of agreement each alternate Saturday from 10.00am to 3.00pm;

(ii) By telephone, Facetime or skype once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm.

(b) From the commencement of the Term 2 2020:-

(i) For 8 hours as agreed, and in default of agreement each alternate Saturday from 10.00am to 6.00pm;

(ii) By telephone, Facetime or skype once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm.

(i) Each alternate weekend as agreed and in default of agreement from 10.00am on Saturday until 6.00pm on Sunday;

(ii) By telephone, Facetime or skype once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm.

(d) From the commencement of Term 4 2020 and each school term thereafter:-

(i) Each alternate weekend commencing the first weekend of each school term from the conclusion of school Friday until the commencement of school on the following Monday morning, or in the event that the Monday is a non-school day to the commencement of school on the Tuesday;

(ii) By telephone, Facetime or skype once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm; and

(iii) Any other time initiated by the child.

(e) For half of all school holiday periods from the commencement of the Term 4 2020 school holidays;

(i) Half of the term holidays as agreed and in default of agreement the first half;

(ii) Half of the long summer holidays as agreed and in default of agreement the first half in even numbered years and the second half in odd numbered years;

(iii) As otherwise agreed in writing.

BY CONSENT IT IS ORDERED:

(f) As and from the commencement of Term 4 2020, the child spend time with the Mother as follows:-

(i) From 3:00pm Easter Sunday until 3:00pm Easter Monday each year.

(ii) From 3:00pm on the day prior to Mother’s Day until 5:00pm on Mother’s Day each year.

(iii) On the child’s birthday, from 9.00am to 2.00pm if a non-school day and from the conclusion of school until 6.00pm if a school day.

(iv) From 5:00pm Christmas Day until 5:00pm Boxing Day in 2021 and each alternate year thereafter.

(v) From 3.00pm Christmas Eve until 5.00pm Christmas Day in 2020 and each alternate year thereafter.

(9) The child’s time with the Mother pursuant to Order 8(a) to 8(e) inclusive be suspended as follows:-

(a) On the child’s birthday, from 10.00am to 3.00pm if a non-school day and from 4.30pm to 6.30pm if a school day.

(b) From 5:00pm Christmas Day until 5:00pm Boxing Day in 2020 and each alternate year thereafter;

(d) From 3.00pm on the day prior to Father’s Day until 3.00pm on Father’s Day each year; and

(e) From 3.00pm Good Friday until 3.00pm Easter Sunday each year.

(10) Each parent shall facilitate telephone communication with the other parent on their respective birthdays if the child is not ordinarily in that parent’s care from 7.00pm to 7.30pm.

BY THE COURT IT IS ORDERED:

(11) The mother’s time will be conditional upon:-

(a) The time referred to paragraph 8(a) being supervised by a supervisor as agreed and in default of agreement as nominated by the Independent Children’s Lawyer at the joint expense of the parties;

(b) The changeover for the time referred to in paragraph 8(b) taking place at a Children’s contact centre as agreed and in default of agreement as nominated by the Independent Children’s Lawyer at the joint expense of the parties;

(c) Unless otherwise agreed, the changeover for time referred to in paragraphs 8(c) to 8(e) inclusive taking place at school wherever possible and when not at school at McDonalds Suburb A at commencement of time and at McDonalds Suburb B at the conclusion of time;

(d) The Mother forthwith engage and attend upon a suitably qualified psychologist as agreed with the Independent Children’s Lawyer, and at her expense, for the purpose of providing the Mother:

(i) Support in relation to the implementation and facilitation of these Orders;

(ii) Therapeutic treatment to assist the Mother in relation to her belief that the child has been sexually abused by the Father; and

(iii) General counselling in relation to the outcome of this proceeding and parenting arrangements for the child.

NOTING THAT this Order is not intended to be an exhaustive list of matters to be dealt with by the Counsellor and the Mother.

(12) That the Father engage a paediatrician as approved by the Independent Children’s Lawyer for assessment as to the child’s current and ongoing needs, and comply with all reasonable directions of this specialist as to treatment and referral, and engage with the Mother as anticipated by paragraphs 2, 3 and 4 hereof.

(13) That at the conclusion of three months from the date of the orders the parties engage in family therapy as nominated by Independent Children’s Lawyer for the purposes of addressing the issues raised in the said Family Report, at the joint expense of the parties, and comply with all reasonable requests of the therapist as to attendance.

BY CONSENT IT IS ORDERED:

(14) The parties shall notify each other as soon as practicable of any significant medical illness or serious injury involving the child when in their care, and authorise the other parent to speak with any health professional involved with the child.

(15) That both parents be noted as an emergency contact and authorised to obtain any information they might require from any educational facility the child attends, and be at liberty to attend any function that parents normally attend, the Mother’s attendance at events to commence from the commencement of Term 3 2020.

(16) That each parent will keep the other advised at all times of their contact details including telephone number, email address, and residential address, and notify the other as soon as practicable of any change in such information.

(17) That parties exchange all important information regarding the welfare of the child by way of email.

(18) That each party be and is hereby restrained from denigrating the other party, or any member of their family in the presence or hearing of the child.

(19) That all extant applications be otherwise dismissed.

(20) That the appointment of the Independent Children’s Lawyer be discharged 6 months following the making of these orders.

(21) The mother and father be at liberty to provide, any professionals they engage, pursuant to these orders, with a copy of:-

(a) The Family Report dated 13 December 2018;

(b) These orders; and

(22) The mother is restrained by injunction from attending upon Mr D or allowing the child to attend upon Mr D.

BY THE COURT IT IS ORDERED

(23) That forthwith the Independent Children’s Lawyer attend upon Child Dispute Services to explain the orders to the child and assist in the transition of the child to the father’s care.

(24) That the father liaise with the Manager of Child Dispute Services in this Registry as to the time he may collect the child from the child minding room following the pronouncement of these orders and the Family Consultant or her nominee meeting with the child to explain to him the effect of the orders.

(25) That the mother be and is hereby restrained by herself, her servants and agents from communicating directly or indirectly, approaching or removing or attempting to remove the child from the father’s care or the care of any other person with whom he has placed him save to exercise time with the child pursuant to an order of this Court or with the prior consent of the father.

(26) That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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