Matthews and Bender (No 2) - [2013] FamCA 740

FAMILY COURT OF AUSTRALIA

MATTHEWS & BENDER (NO. 2)

[2013] FamCA 740

FAMILY LAW – CHILDREN – With whom a child lives – where the mother seeks that the father’s time with the child be reserved – whether the mother will promote and facilitate the child’s relationship with the father – in best interests of the child to live with the father.

FAMILY LAW – CHILD ABUSE – Where mother alleges the father and paternal grandfather have sexually abused the child – whether the child is at an unacceptable risk of sexual abuse in the father’s care – whether the child is at risk of neglect in the father’s care – satisfied child has not been abused and father presents no risk.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Matthews

RESPONDENT:

Ms Bender

INDEPENDENT CHILDREN’S LAWYER:

Glezer Lanteri & Associates Pty Ltd

FILE NUMBER:

MLC

3524

2008

DATE DELIVERED:

27 September 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

15 – 19 July 2013, 9 & 12 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Samson

SOLICITOR FOR THE RESPONDENT:

Peninsula Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Glezer Lanteri & Associates Pty Ltd

ORDERS*

IT IS ORDERED THAT

All previous parenting orders in relation to the child M Matthews born … 2005 are discharged.
The father have sole parental responsibility in respect of all major long term issues for the child save that the father shall, prior to making any decision with respect to any long term issue for the child:
(a) use his best endeavours to advise the mother in writing (via letter, email or communication book) of any decision to be made;
(b) seek the mother’s written response in relation thereto;
(c) consider by reference to the child’s best interests any such response prior to making any decision; and
(d) advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The child live with the father.
It is requested that the Family Consultant or her nominee in Child Dispute Services in this Registry meet with the child and explain to her the effect of the orders made this day prior to releasing the child into the care of the father.
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 her the effect of the orders.
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 her save to exercise time with the child pursuant to an order of this Court…

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 Matthews and Bender (No 2)

Details

AGLC: Matthews and Bender (No 2) [2013] FamCA 740
Case: [2013] FamCA 740
Decision Date

CaseChat Overview and Summary

In *Matthews & Bender (No 2)*, the Family Court of Australia considered parenting orders concerning a child, M, born in 2005. The applicant father sought sole parental responsibility and that the child live with him, while the respondent mother alleged the father and paternal grandfather had sexually abused the child and that the father was a neglectful and incompetent parent. The court was required to determine whether the child was at an unacceptable risk of sexual abuse or neglect in the father's care, and if not, what parenting arrangements were in the child's best interests.

The court's reasoning focused on assessing the mother's allegations of child abuse and neglect against the father. After considering the evidence, including reports from a Family Consultant and a child psychologist, the court was satisfied that the child had not been abused and that the father posed no risk of abuse or neglect. The court found that the mother's allegations, which had a long history of litigation, were unsubstantiated. The court also noted the mother's apparent inability to facilitate a relationship between the child and the father, which was detrimental to the child's best interests.

Applying the principles of the *Family Law Act 1975* (Cth), particularly concerning the best interests of the child, the court discharged all previous parenting orders. The father was granted sole parental responsibility for long-term issues, with specific requirements to consult the mother on decisions. The child was ordered to live with the father, and the mother was significantly restrained from interfering with the father's care of the child. The court also made detailed orders regarding the child's counselling, education, and communication between the parents, reserving the question of the mother's time with the child for a future report.

Orders