MAURER & VAN LAREN - [2012] FamCA 8

FAMILY COURT OF AUSTRALIA

MAURER & VAN LAREN

[2012] FamCA 8

FAMILY LAW – CHILDREN –Parental responsibility – Where the parents do not communicate and have no working relationship – Family violence - Presumption of equal shared parental responsibility does not apply – Best interests of the child - Where the child has Asperger’s Disorder and developmental delays - Whether the father has sexually abused the child – Whether there is an unacceptable risk of sexual abuse in the future - Whether there is an unacceptable risk of emotional or psychological harm to the child by the mother –Whether the conflict between the parents is such that the child cannot maintain a relationship with both parents.

McCall & Clark (2009) FLC 93-405;
Mazorski & Albright (2007) 37 Fam LR 518;

Leighton & Carey [2010] FamCAFC 94;
Braithwaite & Braithwaite [2007] FamCA 468

Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC

Evidence Act 1995 (Cth) s 140

APPLICANT: FATHER

Mr Maurer

RESPONDENT MOTHER:

Ms Van Laren

FILE NUMBER:

NCC

624

2010

DATE DELIVERED:

13 January 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Loughnan J

HEARING DATES:

20, 21 & 22 December 2011

REPRESENTATION

APPLICANT FATHER:	Father in Person
COUNSEL FOR THE RESPONDENT MOTHER	Mr D Maddox

SOLICITOR FOR THE RESPONDENT MOTHER

Cox West Lawyers

COUNSEL FOR THE INDEPENDENT CHILD

LAWYER

Mr Kelly

SOLICITOR FOR THE CHILD

Craney Family Lawyers

Orders

1.All previous parenting orders in relation to the child G Maurer, born … September 1995, (“the child”) are discharged.
2.The mother shall have sole parental responsibility for the child.
3.The child shall live with the mother.
4.The mother shall do all acts and things required to ensure that the child receives letters and gifts sent by the father to the child once per calendar month and on the child’s birthday and Christmas each year.
5.The mother is to advise the father as soon as is reasonably practicable in the event the child is hospitalised or in the event that, apart from formal or informal short term respite arrangements, she is unable to care for the child.
6.The father is at liberty to obtain school reports, school photos and school news letters at his own request and cost and these orders are sufficient authority for such a purpose.
7.Each party, within 28 days of the date of these orders, is to provide the other (via the Independent Children's Lawyer) of their emergency telephone number and postal address and is thereafter to keep the other advised of any changes to their emergency contact details 24 hours prior to any change to those details.
8.The mother is restrained from being intoxicated by alcohol while the child is in her care.
9.Each party is restrained from denigrating the other in the presence of the child or allowing any other person to do so in the presence of the child.
10.It is noted that the Court made an order on 21 December 2011 suppressing the release of…

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: MAURER & VAN LAREN [2012] FamCA 8
Case: [2012] FamCA 8
Decision Date: 13 January 2012

CaseChat Overview and Summary

The parties in this matter were the parents of a child, G Maurer, born in September 1995. The dispute concerned parenting orders, specifically the extent of parental responsibility and the child's living arrangements. The case was heard by Loughnan J.

The court was required to determine several critical issues, including whether the presumption of equal shared parental responsibility applied given the parents' lack of communication and dysfunctional relationship, and the presence of family violence. Further, the court had to consider the best interests of the child, who had Asperger’s Disorder and developmental delays. Key questions included whether the father had sexually abused the child, whether there was an unacceptable risk of future sexual abuse, and whether there was an unacceptable risk of emotional or psychological harm to the child by the mother. The court also had to assess if the conflict between the parents was so severe that the child could not maintain a relationship with both.

Loughnan J found that the presumption of equal shared parental responsibility did not apply due to the family violence and the parents' inability to communicate or co-parent. The court's primary consideration was the best interests of the child. After considering the evidence, the court concluded that it was not in the child's best interests to have shared parental responsibility. The court applied principles relating to the welfare of the child and the need to protect them from harm, particularly in circumstances of family violence and allegations of abuse.

The court ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility for the child, and the child was to live with the mother. Specific provisions were made for the father to receive communication and gifts from the child, and for the mother to inform the father of hospitalisations or inability to care for the child. The father was permitted to obtain school reports at his own expense. Both parties were ordered to exchange emergency contact details and were restrained from denigrating the other in the child's presence. The mother was also restrained from being intoxicated while the child was in her care.

Orders

Orders of the court

1. All previous parenting orders in relation to the child G Maurer, born … September 1995, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. The mother shall do all acts and things required to ensure that the child receives letters and gifts sent by the father to the child once per calendar month and on the child’s birthday and Christmas each year.

5. The mother is to advise the father as soon as is reasonably practicable in the event the child is hospitalised or in the event that, apart from formal or informal short term respite arrangements, she is unable to care for the child.

6. The father is at liberty to obtain school reports, school photos and school news letters at his own request and cost and these orders are sufficient authority for such a purpose.

7. Each party, within 28 days of the date of these orders, is to provide the other (via the Independent Children's Lawyer) of their emergency telephone number and postal address and is thereafter to keep the other advised of any changes to their emergency contact details 24 hours prior to any change to those details.

8. The mother is restrained from being intoxicated by alcohol while the child is in her care.

9. Each party is restrained from denigrating the other in the presence of the child or allowing any other person to do so in the presence of the child.

10.

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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