Meinhardt and Santos - [2011] FamCA 370

FAMILY COURT OF AUSTRALIA

MEINHARDT & SANTOS

[2011] FamCA 370

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the father seeks the reinstatement of previous orders providing that he spend unsupervised time with the child – where the mother makes allegations of sexual abuse against the father – where the father alleges that the mother has psychologically and emotionally abused the child – where the matter has a long history – best interests – application dismissed.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA & 60K

Dieter & Dieter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
KN and Child Representative v NN and JN (2006) 35 Fam LR 518
M & M (1988) 166 CLR 69
Reece & Reece [2011] FamCAFC 24

APPLICANT:

Mr Meinhardt

RESPONDENT:

Ms Santos

INDEPENDENT CHILDREN’S LAWYER:

Bowen Lawyers

FILE NUMBER:

DNC

165

2007

DATE DELIVERED:

24 May 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

27 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Smith

SOLICITOR FOR THE APPLICANT:

Cecil Black Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Norrington

SOLICITOR FOR THE RESPONDENT:

DS Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bowen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bowen Lawyers

Orders

The interim application by the father for re-instatement of suspended orders being the two paragraphs numbered 5 and paragraph 7 of the Order of 21 March 2007 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meinhardt & Santos 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 ADELAIDE

FILE NUMBER: DNC 165 of 2007

Mr Meinhardt

Applicant

And

Ms Santos

Respondent

REASONS FOR JUDGMENT

Introduction

The father seeks interim orders pending the final hearing of the parties’ applications for parenting orders in relation to the child Y born in August 2004 (“the child”).
By way of amended interim orders sought, the father Mr Meinhardt seeks orders re-instating the paragraphs of the Order of 21 March 2007 which deal with the time the father should spend with the child.
Those orders were suspended on 1 October 2010. The original orders of 21 March 2007 provided that the child was to spend time with the father each alternate week from 6.00 pm on Friday until 6.00 pm on the following Wednesday, half the school holidays and on special occasions.

Hearing

At the hearing of the interim applications on 27 April 2011 the father was represented by Mr Smith, the mother by Mr Norrington and the Independent Children’s Lawyer Ms Bowen.
The parties relied on the affidavit material on the Court file, together with counsel’s submissions.
Mr Smith, Counsel for the father, appeared in the Adelaide Registry. Mr Norrington and Ms Bowen appeared by video-link from the Darwin Court.
Due to the length and complexity of the submissions, particularly those from the applicant father,…

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 Meinhardt and Santos

Details

AGLC: MEINHARDT & SANTOS [2011] FamCA 370
Case: [2011] FamCA 370
Decision Date: 24 May 2011

CaseChat Overview and Summary

The case involved an interim application by the father for the re-instatement of suspended orders concerning his relationship with the child. The application was heard by Dawe J.

The central legal issues before the court were whether to reinstate suspended orders relating to the child's relationship with his father, and in doing so, to consider the paramountcy of the child's best interests, the presumption of equal shared parental responsibility, and the circumstances under which that presumption might not apply or could be rebutted. The court was required to assess the need to protect the child from harm against the benefit of maintaining a meaningful relationship with both parents.

Dawe J dismissed the father's application, finding that the presumption of equal shared parental responsibility did not apply in this instance. This conclusion was based on reasonable grounds to believe that the father had engaged in conduct that could constitute abuse of the child, as evidenced by a psychologist's report detailing the child's disclosures of inappropriate touching by the father. Furthermore, an investigation by NT Families and Children had substantiated emotional maltreatment of the child by both parents due to exposure to intra-familial conflict, and the father's conduct was specifically noted as a factor. The court applied the principles outlined in sections 60CC and 61DA of the Family Law Act 1975 (Cth), prioritising the protection of the child from harm over the presumption of equal shared parental responsibility. The court also considered the provisions of section 65DAA regarding equal or substantial and significant time with each parent, but these were secondary to the primary concern for the child's safety and well-being.

Orders

Orders of the court

1. The interim application by the father for re-instatement of suspended orders being the two paragraphs numbered 5 and paragraph 7 of the Order of 21 March 2007 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 24 September 2010 the mother took the child to the office of Ms D, Psychologist. Ms D’s letter of 29 September 2010 includes:On the 23 September 2010 I conducted an interview with [the child] during which time he disclosed to me that his father had been touching his ‘willy’ with his hands and his mouth. He stated that this touching occurred at his father’s home and took place in [the child]’s room. His father reportedly pulls his pants down and puts his mouth over [the child]’s ‘willy’ and also touches his ‘willy’ with hands. He informed that he hits his father on the head when this is happening and tells him to stop. He stated that the touching occurs when he and his father are playing a fighting game and that his father uses his ‘sharp teeth and claws to touch his willy’. [The child] was able to demonstrate how this touching occurred using male puppets.I asked [the child] who he had told about the touching and he informed me that he had reported this to his mother. I asked him whether he had told anyone else and he informed me that he had not. I was aware that he had been interviewed by the Northern Territory Police and had not made any disclosures. I requested that [the child] inform the Police Officers who had interviewed him about the information he had shared with me and he agreed to do this.I contacted Sergeant A, one of the officers who had interviewed [the child] and informed him of the disclosures that [the child] had made during our interview.[the child]’s disclosures were made spontaneously and showed no evidence of fabrication. He was able to demonstrate an understanding of truth and lies and informed that he was telling the truth about his father touching him. His demonstration of the touching using puppets supported the verbal account of how the touching occurred.In my opinion, there are unacceptable risks to this child if he is left in the unsupervised care of his father until this matter is thoroughly investigated.(Emphasis added) In the further affidavit filed by the mother on 28 February 2011 the mother sets out the history of further interviews by the police of the child and the conversations the mother had with the police. The police records indicate that the child did not make any disclosure indicating sexual abuse, but that the police were concerned about the emotional health of the child. That affidavit of the mother also sets out the information given to the mother by the child’s school about the child behaving in a sexual way towards another child at school. She also responds to the father’s allegations about her history, family and allegations that she had inappropriately influenced or trained the child to say negative things about his father. Annexed to that affidavit filed on 28 February 2011 is a letter dated 29 October 2010 which says:This letter is to advise that NT Families and Children, Child Protection Services have completed the child protection investigation regarding current concern for [the child].NTFC have substantiated emotional maltreatment perpetrated against [the child] in accordance with the Care and Protection of Children Act 2007; S15(1)(a) ‘that harm to a child is any significant detrimental effect caused by any act, omission or circumstances on the physical, psychological or emotional wellbeing of the child, S15(1)(b) the physical, psychological or emotional development of the child and S15(2)(a) harm can be caused by the following: physical, psychological or emotional abuse or neglect of the child’.At the time of writing, NTFC have substantiated emotional maltreatment of [the child] by the mother [Ms Santos] and the father [The father], due to the child being exposed to on-going intra-familial conflict between yourself and [the mother].Subsequently, the current child protection investigation involving [the child] will remain open with NTFC […] to enable NTFC to continue monitor [the child]’s emotional wellbeing. NTFC recommend that the following occur to satisfy NTFC:1. That the child [Y] receives psychological support through a psychologist chosen by the parents;2. That the psychological support for the child commence no later than end of November 2010;3. That the parents commence individual counselling and support to address personal issues to commence no later than end of November 2010;4. That the parents commence mediation with an appropriate mediation provider to address communication issues between each other no later than the end of November 2010.(Emphasis added)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 60CC sets out matters which the Court must consider when determining what is in the child’s best interest. The primary considerations are:Primary considerations(2) The primary considerations are:(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). Section 60CC(3) provides: Section 61DA provides:Section 61DA(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or(b)family violence.(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 65DAA (1) to (5) provides;Section 65DAAEqual time (1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must: (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents. Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration. Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable. Substantial and significant time (2) Subject to subsection (6), if: (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and (b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and (sic) the court must: (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents. Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration. Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if: (a) the time the child spends with the parent includes both: (i)days that fall on weekends and holidays; and (ii)days that do not fall on weekends or holidays; and (b)the time the child spends with the parent allows the parent to be involved in: (i)the child’s daily routine; and (ii)occasions and events that are of particular significance to the child; and (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. (4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.