McEllis and McEllis - [2013] FamCA 585

FAMILY COURT OF AUSTRALIA

MCELLIS & MCELLIS

[2013] FamCA 585

FAMILY LAW – CHILDREN – With whom the child spends time – Best interests of the child – Where allegations of unacceptable risk of sexual abuse made by the Mother – Where Mother alleges that the Father is a sex addict – Where child lives with the Mother – Where Father has spent supervised time with the child since separation – Where Father seeks orders to spend time with the child – Where Mother seeks orders for Father to have two hours of supervised contact with the child until the child is 18 years of age – s 60CC Family Law Act 1975 (Cth) – Finding that incident of sexual abuse alleged by Mother did not occur – Finding that no unacceptable risk to the child – Finding that child would benefit from having a meaningful relationship with the Father – Doctrine of Russell & Close – Finding that the Mother’s views, though subjectively held, are not genuinely held as they are baseless and irrational – Interim orders made for the Father to have daytime contact with the child graduating from being supervised to unsupervised – Child to remain living with Mother.

Family Law Act 1975 (Cth)

Archbold and Archbold (1984) 9 Fam LR 798
In the Marriage of A (1998) 22 Fam LR 756
Kerrison & Kerrison [2013] FamCA 3
MRR v GR (2010) 240 CLR 461
Russell & Close (Unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993)

APPLICANT:

Mr McEllis

RESPONDENT:

Ms McEllis

FILE NUMBER:

BRC

10027

2009

DATE DELIVERED:

7 August 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

11,12,13 and 14 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Barry.Nilsson. Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hodges

SOLICITOR FOR THE RESPONDENT:

Kerry Barnes Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

Commencing 10 August, 2013, the Father shall spend time with the child, B born … 2008, supervised by the paternal grandmother (should she be so willing) each Saturday or Sunday, whichever is more convenient, for four (4) hours, for a period of one (1) month.
Following the completion of Order (1) herein, the Father shall spend time with the child each Saturday or Sunday, whichever is more convenient, for four (4) hours, in the presence of the paternal grandmother (should she be so willing) for a period of one (1) month.
Following the completion of Order (2) herein, the Father shall spend unsupervised time with the child each Saturday or Sunday, whichever is more convenient, for four (4) hours, for a period of four (4) months.
In addition to Orders (1), (2) and (3) herein, the Father shall have telephone communication with the child at a time as agreed between the parties, or failing any such agreement, on Wednesday evenings between 6.30 pm and 7.00 pm, with the Father to instigate the telephone…

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 McEllis and McEllis

Details

AGLC: McEllis and McEllis [2013] FamCA 585
Case: [2013] FamCA 585
Decision Date: 7 August 2013

CaseChat Overview and Summary

In the matter of McEllis and McEllis, Bell J of the Family Court of Australia made orders concerning the time the Father would spend with the child, B, born in 2008. The dispute centred on the arrangements for the Father's contact with the child, following a trial held between 11 and 14 March 2013.

The court was required to determine the appropriate parenting orders to be made, balancing the child's best interests with the Father's desire for contact. This involved establishing a phased approach to the Father's time with the child, commencing with supervised contact and progressing to unsupervised contact, as well as outlining provisions for telephone communication. The court also addressed the need for an updated Family Report and the process for its preparation and dissemination.

Bell J ordered a staged increase in the Father's time with the child over a period of six months. Initially, for one month, the Father was to have supervised contact for four hours each weekend, with the paternal grandmother acting as supervisor if willing. This was to be followed by a further month of contact for four hours each weekend in the presence of the paternal grandmother. Subsequently, for four months, the Father was to have unsupervised contact for four hours each weekend. In addition to these arrangements, the Father was granted telephone communication with the child on Wednesday evenings, with provisions for agreement between the parties or a default time. The court also ordered the preparation of an updated Family Report by Mr C, with the parties to share the costs equally, and directed that the Father's legal representatives provide Mr C with relevant documentation. The proceedings were adjourned for mention on 7 February 2014, and the orders included standard provisions regarding obligations, consequences of contravention, and assistance for compliance pursuant to sections 62B and 65DA(2) of the relevant legislation.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER THAT:

Commencing 10 August, 2013, the Father shall spend time with the child, B born … 2008, supervised by the paternal grandmother (should she be so willing) each Saturday or Sunday, whichever is more convenient, for four (4) hours, for a period of one (1) month.

Following the completion of Order (1) herein, the Father shall spend time with the child each Saturday or Sunday, whichever is more convenient, for four (4) hours, in the presence of the paternal grandmother (should she be so willing) for a period of one (1) month.

Following the completion of Order (2) herein, the Father shall spend unsupervised time with the child each Saturday or Sunday, whichever is more convenient, for four (4) hours, for a period of four (4) months.

In addition to Orders (1), (2) and (3) herein, the Father shall have telephone communication with the child at a time as agreed between the parties, or failing any such agreement, on Wednesday evenings between 6.30 pm and 7.00 pm, with the Father to instigate the telephone call and the Mother to make the child available for such telephone call.

The Father’s legal representatives to organise an updated Family Report to be prepared by Mr C, Consultant Social Worker, with the parties to share the cost of such report equally.

The Father’s legal representatives given leave to provide Mr C further filed documentation, any updated subpoenaed documentation together with any exhibits tendered at the trial of these proceedings on 11 March to 14 March 2013 respectively.

The parties shall attend and ensure the child attends all necessary appointments for the preparation of the updated Family Report.

IT IS REQUESTED Mr C prepare and release his updated Family Report by no later than 10 January 2014.

The proceedings be adjourned for mention before the Honourable Justice Bell at 10.00 am on 7 February 2014 at the Brisbane Registry of the Family Court.

10.

Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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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