Milne and Moore & Anor - [2018] FamCA 796

FAMILY COURT OF AUSTRALIA

MILNE & MOORE AND ANOR

[2018] FamCA 796

FAMILY LAW – CHILDREN – Parenting – Where there are four siblings living together – Where the oldest child has a different father to the three younger children – Where there are three competing parenting proposals – Where there is a level of co-operation between the two fathers – Where the eldest subject child is ordered to live with her psychological father and spend substantial and significant time with the mother and with her biological father – Where the eldest child’s relationship with her biological father is likely to be lost if the child were to live with the mother – Where is it is imperative to maintain and foster relationships among siblings – Where all the children are ordered to live with the father of the three younger children and spend time with the mother – Where there are significant third parties involved in the parenting of the subject children in respective households – Where certain third parties pose an unacceptable risk to the children – Where the children make disclosures of sexual assault by a third party – Where the mother and maternal family are dismissive of this risk – Where the mother has impaired capacity to meet the needs of the children – Where the mother has a current relationship that poses significant risk to the children – Where two of the parties have a history of being indifferent to court orders – Where there has been prior involvement with the Department of Family and Community Services.

FAMILY LAW – CHILDREN – Parental Responsibility – Where there are competing proposals for parental responsibility – where allocation of parental responsibility differs between oldest child and three younger children.

Family Law Act 1975 (Cth) s 60CC

Jones v Dunkel (1959) 101 CLR 298
M & M (1988) 166 CLR 69

APPLICANT:

Ms Milne

FIRST RESPONDENT:

Mr Moore

SECOND RESPONDENT:

Mr Rutherford

INDEPENDENT CHILDREN’S LAWYER:

NLS Law

FILE NUMBER:

NCC

2056

2016

DATE DELIVERED:

5 October 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

4-8; 12-14 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Toronto Legal

COUNSEL FOR THE FIRST RESPONDENT:

Mr Wilkinson

SOLICITOR FOR THE FIRST RESPONDENT:

Winder Lawyers

THE SECOND RESPONDENT:

Mr Rutherford representing himself

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Kearney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

NLS Law

Orders

That all prior orders made in this Court and the Federal Circuit Court in relation to: C (“C”) born … 2005, D (“D”) born … 2007, E (“E”) born … 2012 and F (“F”) born … 2013 (“the children”) are discharged.

Parental Responsibility

C

2.1The first respondent father (Mr Moore), and the second respondent father (Mr Rutherford) shall have equal shared parental responsibility for all long term issues involving the care, supervision and welfare of C;
2.2That Mr Moore and Mr Rutherford shall keep the mother advised in writing (which includes text…

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 & Anor

Details

AGLC: Milne and Moore & Anor [2018] FamCA 796
Case: [2018] FamCA 796
Decision Date: 5 October 2018

CaseChat Overview and Summary

In the Family Court of Australia, Cleary J presided over a dispute concerning the parenting arrangements for four siblings: C, D, E, and F. The primary conflict involved competing proposals for the children's residence and parental responsibility, complicated by differing parentage for the eldest child, C, compared to her three younger siblings. The court was also presented with evidence of significant third-party risks to the children, including disclosures of sexual assault and dismissiveness of these risks by the mother and her family, as well as the mother's impaired capacity and a current relationship posing a risk.

The court was required to determine the most appropriate parenting orders for the four children, considering the imperative to maintain sibling relationships while addressing the specific needs and risks associated with each child and parent. Key issues included the allocation of parental responsibility, particularly the differing parentage of C, and establishing residence and time arrangements that would safeguard the children's welfare. The court also had to consider the history of non-compliance with court orders by some parties and prior involvement with child protection services.

Cleary J ordered that the children shall live with the father of the three younger children, Mr Rutherford, and spend substantial time with their mother. For the eldest child, C, equal shared parental responsibility was ordered between her biological father, Mr Moore, and her psychological father, Mr Rutherford, with specific time arrangements outlined for her to spend with Mr Moore. Crucially, Mr Moore was restrained from any contact with a third party, Mr K Moore, when C was in his care, and undertakings were required from other individuals to ensure this. The mother was also restrained from allowing contact between the children and two specific individuals, Mr H and Mr B Milne, during her time with them. The court also imposed orders preventing denigration of each other and discussion of proceedings with the children, and directed that relevant documents be provided to child protection services.

Orders

Orders of the court

That all prior orders made in this Court and the Federal Circuit Court in relation to: C (“C”) born … 2005, D (“D”) born … 2007, E (“E”) born … 2012 and F (“F”) born … 2013 (“the children”) are discharged.

Parental Responsibility

2.1 The first respondent father (Mr Moore), and the second respondent father (Mr Rutherford) shall have equal shared parental responsibility for all long term issues involving the care, supervision and welfare of C;

2.2 That Mr Moore and Mr Rutherford shall keep the mother advised in writing (which includes text and email) of long term decisions taken in relation to matters including but not limited to enrolment at school, specialist medical attention and religious instruction involving C;

2.3 Each party will immediately notify the other two parents, if during such times as C is living or spending time with him or her, the child becomes seriously ill, receives specialist medical treatment or is admitted to hospital.

D, E and F

2.4 Mr Rutherford shall have sole parental responsibility for all long term matters involving the care, supervision and welfare of D, E and F;

2.5 Mr Rutherford shall keep the mother advised in writing (which includes text and email) of long term decisions taken in relation to matters including but not limited to enrolment at school, specialist medical attention and religious instruction involving D, E and F;

2.6 Mr Rutherford and the mother shall immediately notify the other if during such times as the children or any of them are living or spending time with him or her, any of the children becomes seriously ill, receives specialist medical treatment or is admitted to hospital.

Residence

The children shall live with Mr Rutherford.

Time

C’s Time with Mr Moore

Subject to condition in Order 5 C shall spend time with Mr Moore as follows:

4.1 On the 1st, 4th and 7th weekend of each school term from 6.00 pm Friday until the commencement of school Monday or Tuesday if Monday is a Public Holiday;

4.2 During each school term holiday at the end of Terms 1, 2 and 3 as advised by the school that C attends, from the conclusion of the last day she is required to attend school until 12.00 noon on the first Thursday of the holiday period;

4.3 During each school holiday at the end of Term 4 as advised by the school that C attends, from 12.00 midday on 29 December until 12.00 noon on 12 January;

4.4 On the Father’s Day weekend each year, from 6.00 pm Friday until the commencement of school the following Monday;

4.5 At such other and/or additional times as may be agreed between Mr Rutherford and Mr Moore in writing provided such time does not interfere with the time that C will spend with her mother pursuant to these orders.

As a condition to C spending time with Mr Moore, Mr Moore is restrained pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) from:

5.1 Bringing C or any other of the children into contact with Mr K Moore or permitting any third person to do so on his behalf;

5.2 Allowing Mr K Moore to enter any place where C and any of the other children are present, or permitting any third person from allowing him to do so, including but not limited to the place where the four children or any of them may be spending time with Mr Moore.

Mr Moore shall, no later than 14 days from the date of these orders, provide to the Court, and to all other parties, an Undertaking from each of the following people to the effect that at any time when C or any of the other children are in the company of that person, they will not allow Mr K Moore to come into contact with the children or be contacted by the children for any reason:

a. Ms L Moore;

b. Mr M Moore;

c. Ms N.

Changeover

Changeovers shall occur at school or otherwise at O Park, Suburb P, or another location as agreed in writing between Mr Moore and Mr Rutherford (including but not limited to any venue where C is playing sport on Friday afternoons).

Time for the children with the Mother

That subject to her compliance with Order 9 the mother shall spend time with the four children as follows:

8.1 During each school term as advised by the pre-school and schools that each of the four children attend, on the 2nd, 5th and 8th weekends from 9.00 am to 5.00 pm on both Saturday and Sunday;

8.2 With each of the children, until the conclusion of their primary school education, on each Thursday from the conclusion of school until 6.30 pm, provided that the children are not removed from the Q Town area for this period of time, noting that high school aged children may attend if they wish to do so;

8.3 During each school holiday at the end of Terms 1, 2 and 3 as advised by the schools that the four children attend; from 9.00 am on the middle Saturday to 12.00 noon on the immediately following Monday, commencing from the end of Term 3 in 2018, on condition that the children spend overnight time in the home of the maternal great grandparents or in the home of such other maternal relative (known and agreed to by Mr Rutherford) as the mother advises is available for the children to stay in;

8.4 During each school holiday at the end of Term 4, from 12.00 noon on 20 January until 12.00 noon on 24 January, provided that overnight time is in the home of the maternal great grandparents or in the home of such other maternal relative as the mother advises both Mr Rutherford and Mr Moore, is available for the children to stay in;

8.5 On Mother’s Day each year from 9.00 am to 5.00 pm on that day;

8.6 At such other times as may be agreed between the mother and Mr Rutherford in writing, provided such time does not interfere with the time that C would spend with Mr Moore.

As a condition to the mother spending time with the children, the mother is restrained pursuant to section 68B of the Act from permitting the four children or any of them from the following:

9.1 Having any contact with Mr H, or permitting any third person from bringing the children into contact with him;

9.2 Having any contact with Mr B Milne, or permitting any third person from bringing the children into contact with him;

9.3 Permitting Mr H or Mr B Milne from entering any place where the four children or any of them are present or permitting any third person from allowing them to do so, including but not limited to the place where the four children or any of them may be spending time with the mother.

Changeover

10.

Changeovers shall occur at R Town Police Station or such other location as is agreed in writing between the mother and Mr Rutherford (which may include electronic writing such as text). Changeovers will be effected by the children walking unescorted to and from their respective parent’s car.

11.

The mother and Mr Rutherford are restrained, and an injunction is granted restraining each of them, during changeover from speaking to each other in a disrespectful, intimidating or insulting manner whilst in the presence, sight or earshot of the children or any of them. In the event that a third party associated with one of the parents behaves in such a manner, the mother and/or Mr Rutherford shall remove the children promptly from the presence of that person.

Communication

12.

C with Mr Moore

12.1 Mr Rutherford and Mr Moore shall permit C to make telephone calls to the other household at any reasonable time;

12.2 Mr Rutherford shall permit and encourage C to contact Mr Moore on her birthday and on his.

13.

The children with the Mother

13.1 Mr Rutherford shall ensure that a call is made by the children each Wednesday between 6.30 pm and 7.00 pm to the mother or at other times as agreed in writing. To that end, Mr Rutherford shall ensure that the children are all afforded privacy, that is, the calls will not occur via loudspeaker and the adults shall not stay within earshot of the conversation unless specifically asked by the children or any of them to do so.

13.2 Mr Rutherford shall permit and encourage all four children to contact the mother on her birthday and on each of their own birthdays.

Time at Christmas

14.

Notwithstanding any other order, C will spend time with Mr Moore from:

14.1 5.00 pm on 24 December until 3.00 pm on 25 December in 2018;

14.2 5.00 pm on 24 December until 3.00 pm on 25 December in 2021.

15.

Notwithstanding any other order, the four children will spend time with the mother as follows:

15.1 From 10.00 am to 1.30 pm on 24 December in 2018;

15.2 From 5.00 pm 24 December until 3.00 pm 25 December in 2019;

15.3 From 10.00 am to 1.30 pm on 24 December in 2020;

15.4 From 10.00 am to 1.30 pm on 24 December in 2021;

15.5 From 5.00 pm 24 December until 3.00 pm 25 December in 2022;

15.6 From 5.00 pm 24 December until 3.00 pm 25 December in 2023;

15.7 From 10.00 am to 1.30 pm on 24 December in 2024;

15.8 From 5.00 pm 24 December until 3.00 pm 25 December in 2025;

15.9 From 10.00 am to 1.30pm on 24 December in each alternating even year thereafter;

15.10 From 5.00 pm 24 December until 3.00 pm 25 December in each alternating odd year thereafter.

16.

Notwithstanding any other, the four children will spend time with Mr Rutherford as follows:

16.1 From 10.00 am to 1.30 pm on 24 December in 2019;

16.2 From 5.00 pm 24 December until 3.00 pm 25 December in 2020;

16.3 From 10.00 am to 1.30 pm on 24 December in 2022;

16.4 From 10.00 am to 1.30 pm on 24 December in 2023;

16.5 From 5.00 pm 24 December until 3.00 pm 25 December in 2024;

16.6 From 10.00 am to 1.30 pm on 24 December in 2025;

16.7 From 10.00 am to 1.30 pm on 24 December in each odd numbered year thereafter;

16.8 From 5.00 pm 24 December until 3.00 pm 25 December in in each even numbered year thereafter.

Specific Issues

17.

Noting that Ms I may continue to be included on the enrolment records as step-mother living with the children:

17.1 Mr Rutherford is to forthwith do all acts and things to amend the enrolment records for C in order to identify Ms Milne as her mother and Mr Moore as her father, including by the provision a copy of her birth certificate to the high school;

17.2 Mr Rutherford is to forthwith do all acts and things to alter the enrolment records of D and E to identify Ms Milne as the mother of each child including by the provision of a copy of her birth certificate to the school;

17.3 In 2019 when F commences school Mr Rutherford is to ensure that Ms Milne is identified as her mother including by the provision of a copy of her birth certificate to the school;

17.4 Mr Rutherford is to inform C’s high school that Mr Moore may be included as an emergency contact for C in the event Mr Rutherford or Ms I cannot be reached by the school staff.

18.

The Independent Children’s Lawyer shall provide to the pre-school, primary school and high school which the children variously attend, a copy of these orders.

19.

To the extent that it is necessary, Mr Rutherford shall authorise the school to release to Mr Moore and to Ms Milne, all documents which are provided to parents, relating to the welfare and progress of the children at school, together with invitations to attend school events and school newsletters and applications for school photographs.

20.

Each of the parents, Mr Rutherford, Mr Moore and Ms Milne are permitted, subject to direction by schools otherwise, to attend any educational or extra- curricular activity to which parents are ordinarily invited to attend provided that the mother advises Mr Rutherford in writing in advance (including text) of her intention to attend.

Restraints

21.

Mr Moore, the mother and Mr Rutherford are restrained from:

a. Denigrating each other and/or any member of their respective households in the presence or earshot of the four children, or any of them or permitting any third person from doing so;

b. Discussing these proceedings with the four children, or any of them or permitting any third person from doing so;

c. Allowing access to, showing or reading any document prepared as a result of these proceedings to the four children, or any of them or permitting any third person from doing so;

d. Allowing access to, showing or reading any document prepared as a result of investigations carried out by the NSW Police or the NSW Department of Families and Community Services to the four children, or any of them or permitting any third person from doing so.

22.

That the Registrar of the Family Court of Australia at Newcastle shall provide a copy of these orders and reasons for judgment to The Secretary, Department of Family and Community Servicers.

23.

The Independent Children’s Lawyer is permitted to provide a copy of these orders and reasons for judgment directly to the four children’s relevant case workers employed by the NSW Department of Family and Community Services.

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

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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