Milne and Moore and Ors - [2017] FamCA 82

FAMILY COURT OF AUSTRALIA

MILNE & MOORE AND ORS

[2017] FamCA 82

FAMILY LAW – INTERLOCUTORY – With whom the children should live – Where the subject children have different fathers – Where the fathers have an amicable and cooperative parenting relationship – Where the children have been in the care of the Second respondent father for two years and he has a cooperative relationship with the Department of Family and Community Services – Where the Department advised there were no concerns about the children living with the Second Respondent – Where the mother’s new partner presents a possible risk of physical and sexual harm to the children and historical allegations of sexual abuse by the maternal grandfather require a cautious approach by the Court – Decided the Court is to prioritise the children’s safety over maintaining relationships – Ordered the children live with the Second Respondent – Restraint on the children coming into contact with the mother’s partner and the maternal grandfather

Family Law Act 1975 (Cth), s 60CC

APPLICANT:

Ms Milne

FIRST RESPONDENT:

Mr Moore

SECOND RESPONDENT:	Mr Rutherford
THIRD and FOURTH RESPONDENTS:	Ms A Milne and Mr B Milne
INDEPENDENT CHILDREN’S LAWYER:	NLS Law

FILE NUMBER:

(P)NCC

2056

2016

DATE DELIVERED:

8 February 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

EX TEMPORE JUDGMENT OF:

Cleary J

HEARING DATE:

7 February 2017

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE FIRST RESPONDENT:

Winder Lawyers

THE SECOND RESPONDENT:

In person

THE THIRD AND FOURTH RESPONDENTS:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

NLS Law

Orders

All parenting order in relation to C born … 2005, D born … 2007, E born … 2012 and F born … 2013 (“the children”) made in this Court and the Federal Circuit Court, prior to 9 December 2016 are discharged.
Further to the interim orders made on 9 December 2016 I make the following orders.

Pending Further Order it is Ordered That

The children shall live with the Second Respondent Mr Rutherford.
The children shall spend time with the mother either:
(a)Supervised on each alternate Sunday from 10.00 am to 4.00 pm by a person agreed to by the mother and the Second Respondent with any such person to file an Undertaking with the Court confirming that the supervisor:
(i)Has a copy of these Orders;
(ii)Is aware of the obligation to be present with the children at all times during visits;
(iii)Will terminate the visit if concerned for the welfare of the children for any reason.
(b)Such periods of time to commence on the first Sunday of any such agreement about a supervisor being reached.
Or in the event that there is no agreement then:
(c)In a supervised contact centre nominated by the Second Respondent (convenient to the mother and the Second Respondent) for not less than two hours each alternate weekend and to that end, each party shall immediately make contact with the nominated centre and comply with all requirements.
NOTING: that…

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 Milne and Moore and Ors

Details

AGLC: Milne and Moore and Ors [2017] FamCA 82
Case: [2017] FamCA 82
Decision Date: 8 February 2017

CaseChat Overview and Summary

This matter concerned parenting orders for four children, C, D, E, and F. The dispute involved the father (the Second Respondent, Mr Rutherford) and the mother. The court was required to determine the living arrangements for the children and the nature and extent of the mother's contact with them, as well as to address concerns raised by two of the children regarding Mr H, the mother's partner.

The court was tasked with making interim orders regarding the children's residence and the mother's time with them, considering the welfare and best interests of the children. A significant issue was the need to ensure the safety of the children during contact with the mother, necessitating supervised visits. The court also had to consider restraining orders to prevent the children from having contact with specific individuals, namely the maternal grandfather, Mr B Milne, and Mr H.

In its reasoning, the court discharged all prior parenting orders and made new interim orders. The children were ordered to live with the Second Respondent, Mr Rutherford. The mother's time with the children was to be supervised, either by an agreed-upon supervisor or at a supervised contact centre, with specific conditions regarding the supervisor's obligations and the mother's ability to bring her baby daughter, G, but no other persons. Crucially, the court made orders restraining both parties from allowing the children contact with the maternal grandfather and Mr H. The Independent Children’s Lawyer was directed to liaise with the Department of Family and Community Services regarding an inquiry into allegations of sexual misconduct raised by two of the children concerning Mr H.

Orders

Orders of the court

All parenting order in relation to C born … 2005, D born … 2007, E born … 2012 and F born … 2013 (“the children”) made in this Court and the Federal Circuit Court, prior to 9 December 2016 are discharged.

Further to the interim orders made on 9 December 2016 I make the following orders.

Pending Further Order it is Ordered That

The children shall live with the Second Respondent Mr Rutherford.

The children shall spend time with the mother either:

(a) Supervised on each alternate Sunday from 10.00 am to 4.00 pm by a person agreed to by the mother and the Second Respondent with any such person to file an Undertaking with the Court confirming that the supervisor:

(i) Has a copy of these Orders;

(ii) Is aware of the obligation to be present with the children at all times during visits;

(iii) Will terminate the visit if concerned for the welfare of the children for any reason.

(b) Such periods of time to commence on the first Sunday of any such agreement about a supervisor being reached.

Or in the event that there is no agreement then:

(c) In a supervised contact centre nominated by the Second Respondent (convenient to the mother and the Second Respondent) for not less than two hours each alternate weekend and to that end, each party shall immediately make contact with the nominated centre and comply with all requirements.

NOTING: that the mother may bring her baby daughter G, and no other person, to those visits

Each party is restrained from allowing the children, or any of them, to be brought in contact with:

(a) The maternal grandfather Mr B Milne; and

(b) Mr H, the partner of the mother

The Independent Children’s Lawyer shall provide a copy of these interim Orders and Reasons for Judgment to the relevant officer within the Department of Family and Community Services.

The Court Notes That

(A) The Independent Children’s Lawyer has agreed to the request by the Court to make enquiries with the Department of Family and Community Services as to whether the enquiry into notification of sexual misconduct raised by two of the subject children about Mr H are ongoing or concluded.

(B) The outcome of those enquiries are to be provided to the Court when the matter is before the Registrar on 15 February 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.