McCarthy and Kaminski and Anor - [2012] FamCA 381

FAMILY COURT OF AUSTRALIA

MCCARTHY & KAMINSKI AND ANOR

[2012] FamCA 381

FAMILY LAW - CHILD ABUSE - Supervised contact - Where evidence sufficient to remove requirement for supervised contact until judgment delivery

Family Law Act 1975 (Cth)

M v M (1988) 166 CLR 69

APPLICANT:

Mr McCarthy

RESPONDENT:

Ms E Kaminski

INTERVENOR:

Dr D Kaminski

INDEPENDENT CHILDREN’S LAWYER:

Ms Franklin-Bell

FILE NUMBER:

SYC

6500

2010

DATE DELIVERED:

10 February 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Kent J

HEARING DATE:

6-10 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Finch

SOLICITOR FOR THE APPLICANT:

DC Legal Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Carr

SOLICITOR FOR THE RESPONDENT:

Batey's Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lawson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Franklin Bell Family Lawyers

Orders

Orders 3 and 4 of the Orders of 30 November 2011 be vacated.
The application for final Orders filed by the Father be adjourned to 9.00 am on 15 March 2012 in Sydney before the Honourable Justice Kent for oral submissions.
The written submissions of the Independent Children’s Lawyer be filed and served by 4.00 pm on 24 February 2012.
The written submissions of the Mother, the Father and the maternal grandmother be filed and served by 4.00 pm 2 March 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McCarthy & Kaminski and Anor 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 SYDNEY

FILE NUMBER: SYC 6500 of 2010

Mr McCarthy

Applicant

And

Ms E Kaminski

Respondent

EX TEMPORE REASONS FOR JUDGMENT

At the conclusion of the five days of evidence I have heard in this case, and I should interpolate that those five days included some days spent between 9.00 am and 5.00 pm and thus in the normal course this would have been longer than a five day trial in terms of the evidence heard, there is an Application for interim Orders on behalf of the Independent Children’s Lawyer in respect of the children who have been the subject of this trial, namely B, who was born in January 2008 and is thus presently aged three years eight months, and fraternal twins Z and C born in May 2010 and who are thus currently aged twenty months.
This case is a so-called “Magellan” case, being those cases characterised by that name where there are allegations of abuse of the children or at least allegations suggesting that the children are at risk of physical or sexual abuse. Indeed, the trial proceeded on that basis by reference to a couple of considerations. Firstly, there was a body of evidence to suggest that the Father’s propensity to anger might place the children at risk, but more fundamentally that evidence of inappropriate touching of B might present a risk to her if the Father had unsupervised time with her.
I intend to deal at length with…

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

Case: [2012] FamCA 381
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr McCarthy (the Father) applied for interim orders concerning his children, B, Z, and C. Ms E Kaminski (the Mother) and Dr D Kaminski (the maternal grandmother) were also parties. The dispute centred on allegations of child abuse, specifically concerning the Father's contact with B, and the Independent Children's Lawyer's application to modify existing supervised contact orders.

The court was required to determine whether, on an interim basis, the requirement for supervised contact between the Father and the children should be removed pending final judgment. Additionally, the court considered an application by the Independent Children's Lawyer for a restraint on the children having contact with the maternal grandmother. The Father and Mother agreed to the removal of supervision for the Father's contact, while the maternal grandmother opposed this and sought orders for her own contact with the children.

Justice Kent, applying the principles from *M v M* (1988) 166 CLR 69, focused on whether the children were at an unacceptable risk of abuse on the balance of probabilities. The court found that the evidence presented regarding alleged inappropriate touching of B by the Father was not sufficient to satisfy this threshold, particularly given the circumstances in which the alleged incidents occurred and the Mother's current stance. The court also considered the paramount importance of the children having a meaningful relationship with both parents under section 60CC of the *Family Law Act 1975* (Cth), balanced against the need to protect them from harm.

The court ordered that paragraphs 3 and 4 of the existing orders of 30 November 2011, which mandated supervised contact, be vacated. The application by the maternal grandmother for interim contact orders was declined. The matter was adjourned for further written and oral submissions regarding final orders.

Orders