MASTERS & MASTERS - [2016] FamCA 129

FAMILY COURT OF AUSTRALIA

MASTERS & MASTERS

[2016] FamCA 129

FAMILY LAW – CHILDREN - With whom a child lives – With whom a child spends time – Parental responsibility – Best interests of the child – Where the children have lived solely with the father – Where the mother has not attempted to spend time with the children or engaged with the proceedings – Allegations of sexual abuse perpetrated by the mother’s partner – Restraint on contact with the mother’s partner – Supervised time with the mother – Children to live with the father – Father to hold sole parental responsibility.

FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – Proceeded to final hearing on an undefended basis.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) r 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Farmer & Rogers [2010] FamCAFC 253
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT:

Mr Masters

RESPONDENT:

Ms Masters

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Penrith

FILE NUMBER:

PAC

5510

2010

DATE DELIVERED:

3 March 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

22 January 2016

REPRESENTATION

FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Penrith

Orders

That the children of the parties’ marriage namely:
(a)       B born … 2004;
(b)       C born … 2006;
(c)       D born … 2007;
(hereinafter referred to as “the children”) live with the applicant father and that he have sole parental responsibility for the children.
That the mother spend supervised time with the children, or any of them, at such times and with such frequency as is agreed between the parties.
That the time referred to in Order 2 herein, be supervised by an agreed family member and in the absence of agreement between the parties as to an appropriate supervisor, then the mother’s time shall take place at a contact centre of the applicant father’s choosing (hereinafter referred to as “the centre”).
That in order to facilitate the mother’s time with the children, or any of them, pursuant to Order 3 herein, each party must:
(a)       Contact the centre nominated by the father within seven days of his nomination and arrange an appointment for an assessment for suitability for supervision of the time that the children or any of them shall spend with the mother;
(b)       Attend the assessment appointment;
(c)       Comply with all other appointments made by the centre for supervised time;
(d)       Comply with all reasonable directions and requests by staff and, policies and rules of the centre.
That should the centre assess the family as suitable for their service, then the mother is to spend supervised time with the children, or any of them, fortnightly, or with such…

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.

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Details

AGLC: MASTERS & MASTERS [2016] FamCA 129
Case: [2016] FamCA 129
Decision Date: 3 March 2016

CaseChat Overview and Summary

In the matter of *Masters & Masters*, Foster J of the Family Court of Australia considered a dispute concerning the living arrangements and parental responsibility for three children. The father sought orders for the children to live with him and for him to hold sole parental responsibility. The mother did not appear at the final hearing, and the proceedings were therefore conducted on an undefended basis.

The court was required to determine the best interests of the children, particularly in light of the fact that they had lived solely with the father. Key issues included the mother's lack of engagement with the proceedings and her prior attempts to spend time with the children. Furthermore, the court had to consider allegations of sexual abuse perpetrated by the mother's partner, which necessitated a restraint on the children's contact with him and a consideration of supervised contact arrangements with the mother.

Foster J reasoned that the children's welfare was paramount. Given the children's established residence with the father and the mother's non-participation, the court found it to be in the children's best interests to live with the father and for him to hold sole parental responsibility. The court also imposed a restraint on the children having any contact with the mother's partner, Mr E, due to the allegations of sexual abuse. Supervised time with the mother was ordered, with specific provisions for the assessment and facilitation of such contact, including the potential use of a contact centre and the mother's responsibility for associated costs. The father was also ordered to facilitate telephone communication if requested by the children and to ensure their continued access to counselling services.

Orders

Orders of the court

That the children of the parties’ marriage namely:

(a) B born … 2004;

(b) C born … 2006;

(hereinafter referred to as “the children”) live with the applicant father and that he have sole parental responsibility for the children.

That the mother spend supervised time with the children, or any of them, at such times and with such frequency as is agreed between the parties.

That the time referred to in Order 2 herein, be supervised by an agreed family member and in the absence of agreement between the parties as to an appropriate supervisor, then the mother’s time shall take place at a contact centre of the applicant father’s choosing (hereinafter referred to as “the centre”).

That in order to facilitate the mother’s time with the children, or any of them, pursuant to Order 3 herein, each party must:

(a) Contact the centre nominated by the father within seven days of his nomination and arrange an appointment for an assessment for suitability for supervision of the time that the children or any of them shall spend with the mother;

(b) Attend the assessment appointment;

(d) Comply with all reasonable directions and requests by staff and, policies and rules of the centre.

That should the centre assess the family as suitable for their service, then the mother is to spend supervised time with the children, or any of them, fortnightly, or with such other frequency as can be facilitated by the centre, and at such times as are nominated by the centre.

That the father shall deliver the children or any of them to and collect them from the centre on each nominated contact occasion, and shall leave the vicinity of the centre promptly.

That the parties shall comply with all reasonable directions/referrals by the Co-Ordinator/Manager of the centre as to attendance in any courses, counselling or other interventions that may be of assistance to the family and in particular of assistance to the children.

That the mother is to pay the costs of her time with the children.

10.

That the mother shall not attend the centre, or, be within the vicinity of the centre before the commencement of her scheduled time with the children, or any of them, as advised by the staff of the centre and shall leave the centre and its vicinity promptly at the conclusion of her scheduled time with the children, or any of them, as advised by the staff of the centre.

11.

That should the centre be closed for any reason at times when the mother is to spend time with the children than the mother’s time shall take place at such times and with such frequency as is able to be facilitated by the centre when it re-opens.

12.

That the mother is restrained from requiring the children, or any of them, to participate in religious Faith and its rituals in any way whatsoever.

13.

That the father shall facilitate telephone communication between the children, or any of them, and the mother if requested by the children, or any of them.

14.

That the children are to have no contact (of whatsoever nature) with Mr E.

15.

That the father shall ensure that the children, or any of them, are able to continue to access counselling and other services, including child protection counselling services, as may be required/recommended from time to time by their treating general practitioner or other professional assisting the children.

16.

All outstanding applications are dismissed.

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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