Mullen & Acken (No 2) - [2011] FamCA 772

FAMILY COURT OF AUSTRALIA

MULLEN & ACKEN (NO. 2)

[2011] FamCA 772

FAMILY LAW – CHILDREN – Interim hearing – With whom a child spends time – With whom a child communicates.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Goode & Goode (2006) FLC 93-286
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Re: H & Ors (1996) 1 All ER 1

APPLICANT:

Ms Mullen

RESPONDENT:

Mr Acken

INDEPENDENT CHILDREN’S LAWYER:

Mr D Piekarski

FILE NUMBER:

MLC

10068

2010

DATE DELIVERED:

13 July 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

13 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Mulvany

SOLICITOR FOR THE RESPONDENT:

TJ Mulvany & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

IT IS ORDERED THAT:

1.This matter (involving parenting orders and a final alteration of property interests) be listed for final hearing before me to commence on 21 November 2011 estimated to take 8 to 9 days, NOTING THAT the Court will not sit on Friday 25 November 2011.
2.This matter be adjourned for mention before me on Tuesday 18 October 2011 at 9.00 am for directions for trial and in particular directions for filing of evidence and amended applications or responses.
3.The recordings provided by the father of telephone conversations between the girls and the mother in May and June 2011 be marked Exhibit “C1” and be accessible on the Court file in the form of a memory stick.
4.Until further order, the father have sole parental responsibility for the children S born … September 1998, E born … March 2000 and T born … December 2001.
5.Until further order, paragraph 2 and 3 of the Order made by Federal Magistrate Connelly on 5 May 2011, for the children to spend supervised time with the mother, be and is hereby suspended.
6.Until further order, the Order made by me on 5 May 2011, in respect of telephone communication between the mother and the children, be and is hereby suspended.
7.The mother be entitled to communicate with the children (or any of them) by sending letters, cards and/or gifts not more frequently than once every 14 days via the independent children’s lawyer (“ICL”) and the ICL have discretion as to whether the letters, cards and/or gifts will be on-forwarded to the children.
8.In the event that the ICL takes the view that an item sent by the mother ought not be provided to the children (or any of them), the ICL should notify the parents of his decision in writing.
9.The father do all acts and things necessary to obtain the support of a psychologist or counsellor, as agreed between himself and the ICL, to support him in his parenting of the children.
10.The father do all acts and things necessary to ensure that the children attend upon a psychologist,…

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.

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Details

Case: [2011] FamCA 772
Decision Date: 13 July 2011

CaseChat Overview and Summary

This matter came before Bennett J concerning applications by both the mother and the father regarding their children. The mother sought the immediate return of the children to her care in northern Victoria, sole parental responsibility, and the involvement of a school psychiatrist. The father sought to suspend the children's telephone and supervised face-to-face contact with the mother, regulate their communication through the independent children's lawyer with a right of veto, and obtain sole parental responsibility for himself. He also sought to engage a psychologist for therapeutic treatment of the children and himself, and for the outcome of the application to be explained to the girls by a family consultant.

The court was required to determine the appropriate orders concerning the children's living arrangements, parental responsibility, and communication with their mother, considering the father's request to suspend existing contact and regulate future communication. A key issue was whether the father's proposed alterations to the statutory shared parental responsibility arrangement were warranted. The court also had to consider the father's request for therapeutic intervention and the explanation of any court-ordered changes to the children.

In reaching its decision, the court considered the standard of proof in civil proceedings, referencing Lord Nicholls' discussion in *Re: H & Ors*. This established that while family proceedings are civil, the balance of probabilities standard requires that the more serious the allegation, the stronger the evidence must be to establish it. The court acknowledged that the inherent probability or improbability of an event is a factor in weighing probabilities, meaning more improbable events require stronger evidence for their establishment. The court ultimately made orders regarding the children's living arrangements and parental responsibility, and regulated communication between the mother and children, with the independent children's lawyer playing a role in the transmission of communications.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Lord Nicholls discussed the standard of proof to a balance of probabilities in Re: H & Ors[1] in the context of a wardship application. His Lordship relevantly stated:Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings. The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.[2] (emphasis added)[1] (1996) 1 All ER 1.[2] Ibid 16. In these reasons a statement of fact is a finding of fact. No party has filed any formal applications in a case. The mother’s application is that the children be forthwith returned to her, so that they can return to a northern Victorian town and reside with her there. She seeks sole parental responsibility and wants a Department of Education school psychiatrist, one Mr Z “to be brought in to the proceedings”. The mother was unable to explain precisely what she meant. The father seeks that the existing order which provides for the children to communicate with their mother by telephone twice each week be suspended until further order. He seeks that the orders for the mother to have supervised face-to-face time with the children similarly be suspended until further order. He seeks that the mother’s entitlement to provide cards and gifts and letters to the children be regulated and be sent through the independent children’s lawyer, but not otherwise directly or indirectly to the children. The independent children’s lawyer is to have a right of veto for on-forwarding the mother’s communications to the children. The father seeks that he engage a psychologist for therapeutic treatment of the girls and for himself to assist in his parenting of the girls. He seeks that the outcome of this application, and in particular any cessation of the communication which currently exists between the mother and the girls, be explained to the girls as soon as practicable by a family consultant. He also seeks that, until further order, he have sole parental responsibility of the girls, which would in effect alter the statutory arrangement whereby both parents have parental responsibility.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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