MCALLISTER & HALLETT - [2016] FamCA 1088

FAMILY COURT OF AUSTRALIA

MCALLISTER & HALLETT

[2016] FamCA 1088

FAMILY LAW – CHILDREN – Parental responsibility – Where the parties are incapable of co-operation – Where the child is due to begin school soon – Where the father disagreed with the mother’s selection of school – Where the father’s psychological condition impairs his parenting capacity and is not presently well managed – Where the mother has a superior parenting capacity and does not pose any risk of harm to the child – Decided presumption of equal shared parental responsibility does not apply – Ordered the mother have sole parental responsibility

FAMILY LAW – CHILDREN – With whom the child should live – Where the father perpetrated family violence – Where independent records establish a pattern of his violence – Where the child requires protection from risks of harm attributable to the father’s violent conduct – Ordered the child live with the mother

FAMILY LAW – CHILDREN – Interaction with the father – Where the family consultant recommends the child’s relationship with the father should be severed – Where supervision is the only alternate solution to the risk of harm posed by the father – Concluded it is undesirable to impose indefinite supervision and it is in the best interests of both the child and the mother to conclude the litigation – Where the mother can decide if, when, and how the child should spend time with the father as an incident of her sole parental responsibility – No order directing the child’s interaction with the father

Family Law Act 1975 (Cth) ss 4, 60AA, 60CA, 60CC, 61B, 61CA, 62B, 65AA, 65D, 65DA, 68B

Allesch v Maunz (2000) 203 CLR 172
Champness & Hansen (2009) FLC 93-407
H & K [2001] FamCA 687
Marriage of Bieganski (1993) 16 Fam LR 353
Moose v Moose (2008) FLC 93-375
Slater & Light (2013) 48 Fam LR 573
Taylor v Taylor (1979) 143 CLR
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr McAllister

RESPONDENT:

Ms Hallett

INDEPENDENT CHILDREN’S LAWYER:

Ms Adams, Adams & Associates

FILE NUMBER:

NCC

1036

2015

DATE DELIVERED:

12 December 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

12 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Allen

SOLICITOR FOR THE RESPONDENT:

Winder Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Adams, Adams & Associates

Orders

All former orders relating to the child B, born … 2012, (“the child”) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:
(a)The mother’s residence; and
(b)Any school or pre-school attended by the child.
Each party shall take all reasonable steps to ensure that the child is able to communicate…

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: MCALLISTER & HALLETT [2016] FamCA 1088
Case: [2016] FamCA 1088
Decision Date: 12 December 2016

CaseChat Overview and Summary

In *McAllister & Hallett*, Austin J of the Family Court of Australia determined a dispute concerning the parental responsibility and living arrangements for a child. The mother sought sole parental responsibility and orders for the child to live with her, while the father disagreed with the mother's school selection for the child. The court was required to consider the presumption of equal shared parental responsibility and the best interests of the child in light of the parties' inability to cooperate and the father's parenting capacity.

The central legal issues before the court were whether the presumption of equal shared parental responsibility applied, with whom the child should live, and the nature of any interaction between the child and the father. The court had to assess the father's psychological condition, its impact on his parenting capacity, and the presence of family violence perpetrated by the father, as evidenced by independent records. Furthermore, the court considered recommendations from a family consultant regarding the child's relationship with the father and the potential risks of harm.

Austin J found that the presumption of equal shared parental responsibility did not apply due to the father's psychological condition, which was not well managed and impaired his parenting capacity, and the father's history of perpetrating family violence. The court concluded that the mother possessed superior parenting capacity and posed no risk of harm to the child, who required protection from the risks attributable to the father's conduct. Consequently, the court ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The court also made orders restraining the father from approaching the mother's residence and the child's school, and established a limited, supervised form of communication between the child and the father via letters and gifts, with the mother having discretion over the child's direct interaction.

Orders

Orders of the court

All former orders relating to the child B, born … 2012, (“the child”) are discharged.

The mother shall have sole parental responsibility for the child.

The child shall live with the mother.

Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:

(a) The mother’s residence; and

(b) Any school or pre-school attended by the child.

Each party shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

(a) By the father being able to send letters, cards, and/or gifts to the child on or about dates proximate to her birthday, Father’s Day and Christmas Day; and

(b) By the mother promptly sending to the father:

(i) Written acknowledgement of receipt of the father’s written communication, and

(ii) Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.

For the purposes of implementation of Order 5 hereof, the parties shall forthwith notify each other in writing, and keep one another notified in writing, of the postal addresses to which such written communication may be sent between them.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

Any and all outstanding applications are dismissed.

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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