Maxwell and Cross - [2014] FamCA 170

FAMILY COURT OF AUSTRALIA

MAXWELL & CROSS

[2014] FamCA 170

FAMILY LAW – CHILDREN – Sexual abuse allegations – All parties agree the evidence does not support any unacceptable risk findings – Personal lifestyles and relationships of the parties make any chance of joint parenting impossible – Both parents have drug and criminal history backgrounds – Should father’s time now be unsupervised? – Having regard to his behaviour, time needs to be supervised until he proves he can be responsible.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Maxwell

RESPONDENT:

Ms Cross

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

DGC

182

2013

DATE DELIVERED:

25 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

24, 25, 26, 27 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Venice

SOLICITOR FOR THE APPLICANT:

Tyler Tipping & Woods

COUNSEL FOR THE RESPONDENT:

Mr Cash

SOLICITOR FOR THE RESPONDENT:

Griese Lawyers

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER Ms Carter
SOLICITORS FOR THE INDEPENDENT
CHILDREN’S LAWYER Victoria Legal Aid

Orders

That all parenting orders are discharged.
The mother have sole parental responsibility for the children B and N.
The children live with the mother.
The father and mother enrol at C Contact Centre and do all things required to attend there for the father to spend supervised time with B and N.
The father spend such supervised time with the children at C Contact Centre as that contact centre can provide and such supervision continue indefinitely.
The father communicate with the children by telephone each Tuesday and Thursday at 4.00pm.
That the father be at liberty to attend the contact centre with the paternal grandmother.
That the father be at liberty to attend such school events at which parents normally attend provided:
(a)       The children are not left in his care;
(b)       The school principal has no objections to his attendance; and
(c)       Such attendance is not inconsistent with any intervention order.
The Independent Children’s Lawyer provide a copy of this order to:
(a)       The school principal of the school the children attend;
(b)       The mother’s psychologist; and
(c)       The father’s psychologist
The Independent Children’s Lawyer be otherwise discharged.
All outstanding applications are otherwise dismissed.
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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maxwell & Cross has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 182 of 2013

Mr Maxwell

Applicant

And

Ms Cross

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This parenting dispute between Mr Maxwell (“the father”) and Ms Cross (“the mother”) concerns…

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 Maxwell and Cross

Details

AGLC: Maxwell and Cross [2014] FamCA 170
Case: [2014] FamCA 170
Decision Date

CaseChat Overview and Summary

This case involved parenting orders concerning two children, B and N, between their parents, Mr Maxwell (the father) and Ms Cross (the mother). The dispute was transferred to the Family Court of Australia due to an allegation of sexual abuse against the father. While the parties ultimately agreed that the evidence did not support findings of unacceptable risk of sexual abuse, the court was required to determine the appropriate parenting arrangements, considering the parents' personal lifestyles, drug and criminal histories, and the impossibility of joint parenting.

The court was tasked with determining whether the father's time with the children should continue to be supervised. This required an assessment of the father's behaviour, his extensive criminal history, his history of drug use, and his capacity to be a responsible parent. The court also had to consider the impact of the parents' ongoing conflict and lack of respect for each other on the children's welfare.

The court found that while the evidence regarding sexual abuse was confusing and unreliable, and therefore no unacceptable risk finding was made, the father's extensive criminal history, including offences of violence, drug use, and breaches of intervention orders, demonstrated a significant lack of responsibility and control. The court noted the father's inconsistent evidence and his inability to recall significant events, attributing this to his drug use and dysfunctional background. The court also found that the parents' mutual animosity and vitriolic communication, even via text messages, indicated they could not protect the children from their conflict. Consequently, the court concluded that the father's time with the children needed to remain supervised indefinitely to ensure their safety and well-being.

The court ordered the discharge of all previous parenting orders. The mother was granted sole parental responsibility, and the children were to live with her. The father's time with the children was to be supervised indefinitely at a contact centre, with provisions for telephone contact and limited attendance at school events under specific conditions. The Independent Children's Lawyer was to provide copies of the order to relevant professionals, and all outstanding applications were dismissed.

Orders