FAMILY COURT OF AUSTRALIA
| MICHAEL & MCDONALD | [2011] FamCA 164 |
| FAMILY LAW – CHILDREN – With whom a child lives – best interests of child – allegations of child sexual abuse – unacceptable risk – the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence – presumption of equal shared parental responsibility – parental capacity - |
| Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61DA(1), s 61DA(2), s 61DA(4), s 65AA, s 65DAA(1), s 65DAA(2), s 65DAA(3) |
| B and B (1993) FLC 92-357 Chappell and Chappell [2008] Fam CAFC 143 Donaldson & Donaldson [2011] FamCA 13 Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 M v M (1988) FLC 91-979 MRR v GR (2010) 42 Fam LR 531 Napier and Hepburn (2006) FLC 93-303 |
| APPLICANT: | Ms Michael |
| RESPONDENT: | Mr McDonald |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 11035 | of | 2008 |
| DATE DELIVERED: | 25 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 17, 18, 19, 20 & 21 January 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Linklater-Steele |
| SOLICITOR FOR THE APPLICANT: | TLG Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Carew |
| SOLICITOR FOR THE RESPONDENT: | Nita Stratton-Funk & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
That the following parenting orders are made in relation to the children B and C both born on … May 2003.
That these orders shall commence operation at the conclusion of school on 4 March 2011.
That all previous orders and undertakings are discharged.
Parental Responsibility
That the mother and the father have equal shared parental responsibility for the children.
Live with
That during school term:
5.1.The children live in a week about arrangement with the mother and with the father with changeover to occur at school each Friday at the conclusion of school. This arrangement is to commence with the children living with the parent with whom they would have been living at the conclusion of school on 4 March 2011 pursuant to the previous orders.
School Holidays
That the father and the mother share equally all school holidays with the father to have the first half in even numbered years and the second half in odd numbered years, the holidays to be calculated as commencing at 9:00 am on the first day after school concludes and concluding at 5:15 pm on the last day prior to the commencement of the new school term, changeovers to take place at the home of the parent who does not have the children.
That when spending holiday time and long weekends with the children away from Brisbane the parties provide each other with contact details for the children whilst they are away as soon as practicable but not less than 48 hours prior to the trip.
Special days
That should Mother's Day fall on…
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- MICHAEL & MCDONALD [2011] FamCA 164
- Case
- [2011] FamCA 164
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of parental responsibility, the specific living arrangements for the children during school terms and holidays, and the allocation of special days such as birthdays and public holidays. Further issues included the parameters for communication between parents and children, the exchange of medical and school-related information, and the conditions under which children could be enrolled in extracurricular activities. The court also had to address injunctions concerning the removal of children from Australia and the conduct of the parents towards each other and the children, as well as specific therapeutic requirements for both parents.
Johnston J made orders establishing equal shared parental responsibility for the children. The children were to live in a week-about arrangement with each parent during school terms, with changeovers occurring at school on Fridays. School holidays were to be shared equally, with specific arrangements for even and odd-numbered years. The court detailed provisions for special days, including Mother's Day, Father's Day, children's birthdays, and the parents' birthdays, as well as the Australia Day public holiday and Easter. Communication by telephone and internet was regulated, and both parents were to be kept informed of medical and school-related matters, with specific notification requirements for appointments and illnesses. The court also made orders restraining the parents from denigrating each other, removing the children from Australia without agreement, and imposed specific conditions on the mother regarding medical practitioners and the Department of Child Safety. The father was also restrained from bathing or showering with the children.
The court further ordered that the children attend a specific school unless otherwise agreed, and that neither parent could enrol the children in new care or schooling without written consent. Both parents were permitted to attend school functions. Injunctions were granted to prevent the removal of the children from Australia without agreement and to restrain the mother from taking the children to medical practitioners or the Department of Child Safety without court leave. The father was also specifically restrained from bathing or showering with the children. The court also made orders regarding the attendance of both parents at counselling or therapy sessions, with specific instructions for the provision of the court's orders and reasons for judgment to relevant professionals and authorities. Notations were made concerning allegations of sexual abuse against the father, with the court finding the evidence relied upon by the Department of Communities (Child Safety) to be seriously flawed and unreliable, and requesting that the allegations be recorded as unsubstantiated. The court also made a strong recommendation regarding the practice of interviewing children in child protection matters.
Orders
Orders of the court
1.
That the following parenting orders are made in relation to the children B and C both born on … May 2003.
2.
That these orders shall commence operation at the conclusion of school on 4 March 2011.
3.
That all previous orders and undertakings are discharged.
Parental Responsibility
4.
That the mother and the father have equal shared parental responsibility for the children.
Live with
5.
That during school term:
5.1. The children live in a week about arrangement with the mother and with the father with changeover to occur at school each Friday at the conclusion of school. This arrangement is to commence with the children living with the parent with whom they would have been living at the conclusion of school on 4 March 2011 pursuant to the previous orders.
School Holidays
6.
That the father and the mother share equally all school holidays with the father to have the first half in even numbered years and the second half in odd numbered years, the holidays to be calculated as commencing at 9:00 am on the first day after school concludes and concluding at 5:15 pm on the last day prior to the commencement of the new school term, changeovers to take place at the home of the parent who does not have the children.
7.
That when spending holiday time and long weekends with the children away from Brisbane the parties provide each other with contact details for the children whilst they are away as soon as practicable but not less than 48 hours prior to the trip.
Special days
8.
That should Mother's Day fall on a weekend when the father would ordinarily have the care of the children, then the father shall make the children available to the Mother from 5:00 pm Saturday before Mother's Day to 9:00 am Monday.
9.
That should Father's Day fall on a weekend when the mother would ordinarily have the care of the children, then the mother shall make the children available to the Father from 5:00 pm Saturday before Father's Day to 9:00 am Monday.
10.
That the parent who has the care of the children on the children's birthday shall make them available to the other parent to spend time with them from 3:00 pm to 8:00 pm if the birthday falls on a week day and from 2:00 pm to 7:30 pm if the birthday falls on a weekend.
11.
That the parent who has the care of the children on the birthday of the other parent, shall make the children available to spend the day with that other parent.
12.
That the Australia Day Public holiday be shared by the parties as follows:
12.1. in 2011 and in each alternate year thereafter with the Mother from 9:00 am to 8:30 am the next morning;
12.2. in 2012 and in each alternate year thereafter with the Father from 9.00 a.m. to 8.30 a.m. the next morning.
13.
That in the event that Easter does not fall within the school holidays the children are to spend Easter with the father in even numbered years and with the mother in odd numbered years.
14.
That upon each party giving 7 days notice to the other of any special occasion days / nights such as special religious days or weddings that fall on days when the requesting parent would not ordinarily have the care of the children, then the parent who has the care of the children will not unreasonably withhold their consent for the children to attend such special occasion.
Communications by Telephone / Internet
15.
That the non-resident parent shall be at liberty to telephone the children between 7:30 pm and 8:00 pm on Sundays and Thursdays or such other times as the parties agree in writing.
16.
That the children shall be at liberty to telephone, or have internet communication with the non-resident parent on not more than one occasion each day when the children are in the care of the resident parent and the latter shall facilitate such phone calls and internet access when requested by the children.
Medical
17.
That the mother and father each keep the other informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and this order is authority for those practitioners to provide the other party with information which they are lawfully able to provide about the children.
18.
That the mother and father immediately notify the other of any serious illness of the children or hospitalisation of the children as soon as practicable.
19.
That the mother and the father notify each other of all specialist appointments and medical procedures in relation to the children at least 7 days prior to the appointment or procedure.
School
20.
That the children shall attend D School unless otherwise agreed between the parties in writing to change the children's school/s.
21.
That this order represents an authority by both the mother and the father to the children's school and after school care to provide to the other parent any and all information relating to the children which may be requested by either parent from time to time.
22.
That neither parent enrol the children at any day care/preparatory school/before and after school care/school without the written consent of the other parent.
23.
That both parents be at liberty to attend functions of the children such as the children's first day at school, school sports days, concerts, parent/teacher interviews, award ceremonies and all other functions that parents ordinarily attend.
Injunctions
24.
That the mother and the father not denigrate or criticise the other in the presence of the children or in the hearing of the children.
25.
That each party is restrained from removing the children from the Commonwealth of Australia unless such travel is agreed by the parties in writing or is an order of the Court.
26.
That the mother is restrained from taking or causing or requesting any other person to take the children to any medical practitioner or to the Department of Child Safety or to the Police in relation to any allegation against the father without first obtaining the leave of this Court.
27.
That the father shall not bath nor shower with the children.
Other
28.
That the children shall only be enrolled to attend sporting and extracurricular activities agreed to by the parties in writing and that the parent who has the care of the children be responsible for the drop off and collection in relation to the children's attendance at these activities and that each parent keep the other informed of the children's scheduled events.
29.
That the mother and father ensure that when the children are in their respective care that she / he is the primary carer.
30.
That each parent advise the other of any change in their address including details at least 7 days prior to moving and advise the other immediately of any changes to their telephone number.
31.
That in the event that the mother or father alter their work timetables, they shall, seven days prior to such alteration occurring, communicate with each other and plan any necessary changes that may need to occur to child care arrangements, including after school care arrangements for the children with the aim of minimising the amount of time to be spent by the children in an after day care or school care facility.
32.
That the mother and father inform the other of any changes to the living arrangements for the children including any significant changes to the children's routines, partners of either party staying in the household with the children from time to time, including the names and ages of any children of such partners and the sleeping arrangements.
33.
That the mother attend upon a psychiatrist or psychologist nominated by the independent children's lawyer for such time as may be recommended by the treating psychiatrist/psychologist for the purpose of assisting her to come to terms with these orders and notations, in relation to her interactions with the father and parenting matters generally, and that such person be provided with a copy of these orders and Reasons for Judgment.
34.
That the father continue to attend on Dr E in relation to his interactions with the mother and parenting matters generally and Dr E be provided with a copy of these orders and Reasons for Judgment.
35.
That the father have leave to provide a copy of these orders and Reasons for Judgment to the Department of Communities (Child Safety) and the Queensland Police Service.
36.
That a copy of these orders and Reasons for Judgment be provided to the Acting Director Child Dispute Services.
Notations
37.
That this Court has determined that the father does not pose an unacceptable risk of harm to the children B and C both born on … May 2003 as alleged against him.
38.
That this Court, having considered the evidence upon which the Department of Communities (Child Safety) has relied to substantiate the findings of sexual abuse of the children by their father, including hearing oral evidence from Detective Senior Constable F and Detective Senior Constable G and having viewed the taped interviews of the children on 1 November 2008, 17 December 2008 and 17 October 2009, has determined that such evidence is seriously flawed and unreliable.
39.
That this Court has also had the opportunity to hear extensive oral evidence from the mother, the father and other witnesses.
40.
That this Court respectfully requests that the Department of Communities (Child Safety) and the Queensland Police Service amend their records to indicate that such allegations against the father be recorded as unsubstantiated.
41.
That this Court respectfully requests that the Queensland Police Service note that the practice of conducting interviews or discussions with children in child protection matters, other than recorded on tape and / or video camera can lead to disastrous consequences for the subject children as has occurred in this case. This Court respectfully requests that the practice of unrecorded interviews of children in such matters cease immediately.
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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