Muggeridge & Anor and Moller - [2019] FamCA 727

FAMILY COURT OF AUSTRALIA

MUGGERIDGE AND ANOR & MOLLER

[2019] FamCA 727

FAMILY LAW – CHILD ABUSE – Sexual abuse – Where there are allegations that the first applicant father sexually abused one or both of the children – Where one of the children makes allegations– Where the mother supported the belief that the child was sexually abused – Where it is likely that the mother coached a child to make allegations – Where there is a consideration of the risk posed to the children – Where the mother now accepts that there is no evidence to support a finding that either child was sexually abused by the first applicant.

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of a child – Where the children have always lived in the primary care of the mother – Where the children each have a different father – Where each father seeks that his respective child transitions into his care – Where the effect of transitioning the children to their respective fathers would seriously damage, if not sever, the relationship between the siblings – Where the mother now supports each child having a relationship with their respective fathers – Where separation of the siblings would not be in their best interests – Orders.

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3)

Andrew & Delaine [2009] FamCAFC 182
Beckham & Desprez [2015] FamCAFC
Bennett v Bennett (1991) FLC 92-191
Blanding v Blanding [2016] FamCAFC 21
Chapman & Palmer (1978) FLC 90-510
H & H (1995) FLC 92-599
Mazorski & Albright [2007] FamCA 520

1st APPLICANT:

Mr Muggeridge

2nd APPLICANT:

Ms Ashworth

RESPONDENT:

Ms Moller

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:	ADC	1580	of	2015
FILE NUMBER:	ADC	3888	of	2016

DATE DELIVERED:

11 October 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

29, 30 April 2019, 1, 2, 3, 6, 7 May 2019 and 15 July 2019

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT:

Mr Tredrea

SOLICITOR FOR THE 1ST APPLICANT:

Bartel & Hall

COUNSEL FOR THE 2ND APPLICANT:

Ms Lewis

SOLICTOR FOR THE 2ND APPLICANT:

Jacqui Ion Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Ross

SOLICITOR FOR THE RESPONDENT:

Angela Ferdinandy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fuda

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That the first applicant and the mother have equal shared parental responsibility for B born … 2014.
That B shall live with the first applicant from the conclusion of school (or 4.00 pm if a non-school day) on Friday to the conclusion of school (or 4.00 pm if a non-school day) on the following Friday commencing 18th day October 2019 and each alternate week thereafter.
(3) That B shall live with the mother from the conclusion of school (or 4.00 pm if a non-school day) on Friday to the conclusion of school (or 4.00pm if a…

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 Muggeridge & Anor and Moller

Details

AGLC: Muggeridge & Anor and Moller [2019] FamCA 727
Case: [2019] FamCA 727
Decision Date: 11 October 2019

CaseChat Overview and Summary

This matter concerned applications by the first and second applicants, fathers of two children, B and D respectively, seeking orders for the children to live with them. The children had primarily resided with their mother, the respondent. Allegations of sexual abuse by the first applicant were initially raised by the mother, who it was considered likely coached the child to make these allegations. However, the mother later accepted there was no evidence to support a finding of sexual abuse by the first applicant. The court was required to determine the parenting arrangements for B and D, considering the best interests of the children, including the significant risk of serious damage to the sibling relationship if the children were separated.

The court was required to determine the parenting arrangements for B and D, with a particular focus on the best interests of the children. This involved assessing the risk posed by the allegations of sexual abuse, the mother's role in potentially coaching a child, and the impact of separating the siblings. The court also had to consider the children's existing living arrangements and the fathers' respective applications for the children to transition into their care.

Berman J applied the paramount consideration of the best interests of the children. The court noted that separating the siblings would likely cause serious damage to their relationship, which was not in their best interests. Despite the initial allegations of sexual abuse, the mother ultimately conceded there was no evidence to support them. The court therefore focused on establishing parenting orders that would allow for meaningful relationships with both parents while preserving the sibling bond.

The court made orders for equal shared parental responsibility for B between the first applicant and the mother, with B to live alternately with each parent on a weekly basis, and specific arrangements for school holidays. For D, the court ordered equal shared parental responsibility between the second applicant and the mother, with D to live with the mother but spend significant time with the second applicant, including alternate weekends or every third weekend, and half of school holidays, with these arrangements to coincide with B's time with the first applicant. Injunctions were granted against all parties restraining denigration, discussing proceedings with the children, and discussing current or future parenting arrangements with them. Further injunctions were placed on the mother restraining her from permitting maternal grandparents from communicating with the fathers except in emergencies, and from taking the children for therapeutic assessment without the fathers' consent. The mother was also ordered to facilitate FaceTime communication between D and the second applicant.

Orders

Orders of the court

That the first applicant and the mother have equal shared parental responsibility for B born … 2014.

That B shall live with the first applicant from the conclusion of school (or 4.00 pm if a non-school day) on Friday to the conclusion of school (or 4.00 pm if a non-school day) on the following Friday commencing 18th day October 2019 and each alternate week thereafter.

(3) That B shall live with the mother from the conclusion of school (or 4.00 pm if a non-school day) on Friday to the conclusion of school (or 4.00pm if a non-school day) on the following Friday commencing 11th day of October 2019 and each alternate week thereafter..

That during school holidays B shall live with the first applicant as follows:-

(a) For one half of the April, July and October school holidays as may be agreed and in default of agreement THEN for the first half of the school holidays in every even numbered year thereafter and for the second half in every odd numbered year thereafter;

(b) For one half of the December/January school holidays as may be agreed and in default of agreement THEN for twenty one (21) days from 3.00 pm on 24 December in even numbered years and for twenty one (21) days from 10.00 am on 26 December in odd numbered years.

(c) From 5.00 pm Maundy Thursday until 5.00 pm Easter Monday in 2020 and each alternate year thereafter PROVIDED that B shall live with the mother from 5.00 pm Maundy Thursday until 5.00 pm Easter Monday in 2021 and each alternate year thereafter;

(d) That in the event that Mother’s Day does not fall during the mother’s time with the child THEN from 4.00 pm on the Saturday prior until 5.00 pm on Mother’s Day PROVIDED that if Father’s Day falls during the mother’s time with the child THEN she will return the child to the first applicant’s care at 4.00 pm on the Saturday prior to Father’s Day.

(2) That B live with the mother at all other times PROVIDED that Orders 2 and 3 shall be suspended during school holiday periods.

That the second applicant and the mother have equal shared parental responsibility for D born … 2010.

That D live with the mother.

That D shall spend time with the second applicant as follows:-

(a) At the election of the second applicant either each alternate weekend or each third weekend from the conclusion of school (or 4.00 pm if a non-school day) until 7.00 pm Sunday (subject to flight time) commencing 18th day of October 2019;

(b) For one half of the April, July and October school holidays as may be agreed PROVIDED that the time D shall spend with the second applicant coincides with the time that B shall spend with the first applicant;

(c) For one half of the December/January school holidays as may be agreed and in default of agreement THEN for twenty one (21) days from 3.00 pm on 24 December in even numbered years and for twenty one (21) days from 10.00 am on 26 December in odd numbered years PROVIDED that the time D shall spend with the second applicant coincides with the time that B spends with the first applicant.

(d) From 5.00 pm Maundy Thursday to 5.00 pm Easter Monday in 2020 and each alternate year thereafter PROVIDED that D shall be with the mother from 5.00 pm Maundy Thursday to 5.00 pm Easter Monday in 2021 and each alternate year thereafter.

(e) That in the event that Mother’s Day does not fall during the mother’s time with the D THEN the second applicant’s time shall be suspended for the entire weekend PROVIDED that if Father’s Day falls during the mother’s time with B THEN she will spend the entire weekend with the second applicant.

That D live with the mother at all other times PROVIDED that order 8(a) shall be suspended during school holidays.

10.

That D shall fly between C Town and Adelaide (on an unaccompanied basis) at the expense of the second applicant PROVIDED that if the mother shall make application for a Child Support Assessment to issue in respect of D THEN the mother and the second applicant will share equally in the costs of D’s travel between C Town and Adelaide.

11.

That all parties be at liberty at their sole cost to obtain school reports and photos from any school at which D and B attend.

12.

That the first applicant and the mother shall contact B’s school and authorise the release of reports, notices and other information to each of the parties upon their request for same.

13.

That the second applicant and the mother shall contact D’s school and authorise the release of reports, notices and other information in respect of the child’s attendance upon their request for same.

14.

That each of the parties shall advise the other of any serious medical emergency involving either D or B with such communication to be by way of telephone or other electronic means.

15.

That each of the parties shall keep the other advised of their mobile telephone numbers, email address and the residential address of any place at which D and B reside.

16.

That the first and second applicants and the mother are each restrained and an injunction is granted restraining each of them from:-

(a) Denigrating each other in the presence or hearing of D or B or permitting any other person to do so;

(b) Permitting D or B to read documents filed in these proceedings;

(d) Discussing current or future parenting arrangements with D or B or permitting any other person to do so.

17.

That the mother is restrained and an injunction granted restraining her from:-

(a) Permitting the maternal grandparents or either of them from communicating with either the first or the second applicant either personally or for and on behalf of the mother SAVE AND EXCEPT in the case of an emergency;

(b) From taking either D or B to any health professional including a psychologist, therapist or counsellor for the purposes of counselling or therapeutic intervention or assessment without the express consent of the first applicant in respect to B and the second applicant in respect to D.

18.

That the mother shall facilitate Face-time communication between D and the second applicant each Tuesday and Thursday from 6.30 pm to 7.00 pm and at such other times as D may request.

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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