McCarthy and Kaminski & Anor - [2013] FamCA 211

FAMILY COURT OF AUSTRALIA

MCCARTHY & KAMINSKI AND ANOR [2013] FamCA 211

FAMILY LAW – CHILDREN - With whom children live – Allegations of family violence by the Father – Where there is a finding that there was family violence during the relationship – Where the Father’s conduct is exaggerated by the Mother – Where the Father’s conduct was a consequence of the dynamics of the household during the relationship – Where the parents lived with the children and the maternal grandmother at the maternal grandmother’s home –Where there has been significant conflict between the Father and the maternal grandmother –Where the Mother and the maternal grandmother were in an enmeshed relationship – Where the Mother has since left the home of the maternal grandmother following conflict – Where no need for protection exists with respect to the children and either parent in their current environments away from the maternal grandmother – Where the Mother is the children’s primary attachment figure and the balance of considerations leads to the conclusion that remaining in the primary care of the Mother is in the children’s bests interests
FAMILY LAW – CHILDREN – With whom children spend time – Where there have been allegations of sexual abuse by the Father – Where the Mother resiled from maintaining allegations of sexual abuse during the trial – Where the maternal grandmother has advanced the allegations of sexual abuse with the motivation to cause harm to the Father and has influenced the Mother and other members of her family to cause them to reconstruct previous past events into something sinister – Finding made that the allegations of sexual abuse are groundless – Where it is in the children’s bests interests to spend time and communicate with the Father
FAMILY LAW – CHILDREN – With whom children spend time –Where there are concerns the maternal grandmother will seek to persuade the children of her views – Where there are concerns the children will be emotionally abused by the maternal grandmother –Where the eldest child is fearful of the maternal grandmother following her witnessing family violence between the Mother and the maternal grandmother – The maternal grandmother is restrained from spending time or communicating with the children

FAMILY LAW – CHILDREN – Parental Responsibility – Where the parties are hostile towards each other – Where there has been findings of family violence – Presumption of equal shared parental responsibility does not apply and is rebutted

FAMILY LAW – COSTS – Where the making of allegations of sexual abuse necessitated the appointment of an Independent Children’s Lawyer – Where the maternal grandmother played a pivotal role in making and maintaining those groundless allegations – Where there are justifying circumstances warranting an order for the costs of the Independent Children’s Lawyer to be paid by the maternal grandmother on an indemnity basis

Family Law Act 1975 (Cth)

Donnell v Dovey (2010) FLC 93-428
Henderson & Chopke [2011] FamCA 631
Wen v Thom [2010] FamCAFC 81

APPLICANT: Mr McCarthy

RESPONDENT: Ms…

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: McCarthy and Kaminski & Anor [2013] FamCA 211
Case: [2013] FamCA 211
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered parenting orders concerning three children, B, C, and Z. The proceedings involved the children's father, Mr McCarthy (the Applicant), the children's mother, Ms Kaminski (the Respondent), and the children's maternal grandmother, Dr D Kaminski, who intervened in the proceedings. An Independent Children's Lawyer (ICL) was also appointed to represent the children's interests. The dispute centred on allegations of family violence and sexual abuse, and the primary issue was with whom the children should live and spend time.

The court was required to determine several legal issues, including whether the presumption of equal shared parental responsibility applied, given the hostility between the parents and findings of family violence. It also needed to assess the credibility and impact of allegations of sexual abuse made against the Father, particularly in light of the Mother's retraction of these allegations during the trial and the maternal grandmother's continued assertion of them. Furthermore, the court had to consider the children's best interests regarding their living arrangements, time spent with each parent, and the role and potential influence of the maternal grandmother. The court also had to address the issue of costs, specifically concerning the appointment of the ICL.

Justice Kent found that the maternal grandmother had exaggerated the Father's conduct and that his actions were a consequence of household dynamics, including significant conflict between the Father and the maternal grandmother, and an enmeshed relationship between the Mother and her mother. The court determined that the allegations of sexual abuse against the Father were groundless and that the maternal grandmother had advanced these allegations with the motivation to harm the Father, influencing other family members. Consequently, the court found no need for protection for the children in their current environments away from the maternal grandmother. The Mother was identified as the children's primary attachment figure, and the balance of considerations favoured the children remaining in her primary care. The court also found that the maternal grandmother posed a risk of emotional abuse to the children and that the eldest child was fearful of her.

The court made orders that the presumption of equal shared parental responsibility was rebutted. The Mother was granted primary parental responsibility for major long-term issues, with specific requirements for consultation with the Father. The children were ordered to live with the Mother, and detailed arrangements were made for the children to spend time and communicate with the Father. Crucially, the maternal grandmother was restrained from spending time or communicating with the children, and both parents and the maternal grandmother were restrained from speaking negatively about each other in the children's presence or discussing the proceedings or allegations. The maternal grandmother was also ordered to pay the costs of the Independent Children's Lawyer on an indemnity basis due to her pivotal role in advancing groundless allegations.

Orders