FAMILY COURT OF AUSTRALIA
| OLIVIER & OLIVIER | [2020] FamCA 639 |
| FAMILY LAW – CHILD ABUSE – allegations of sexual abuse and risk of sexual abuse against Father and paternal grandfather – speculative basis for asserting abuse – consistency with sexual abuse does not necessarily equate to being indicative or suggestive of sexual abuse – direct evidence to the contrary in the form of a denial – no cross-examination to suggest the Father has sexually abused– allegations of family violence – episodic violence between the parents – coercion and control – evidence must be sufficient to allow a characterisation of coercion or control – allegations that the Mother is mentally unwell – evidence does not support finding that Mother has a mental health issue – Father maintains view Mother is mentally unwell – effects of maintenance of belief on parenting capacity – whether pursuit of belief is coercive, controlling or abusive – credibility – shared parental responsibility – potential harm to children arising from parental conflict – equal time arrangement would call for high levels of cooperation – children live with Mother – Mother has exercised the greater role in the care of the children – living with Mother will involve lesser change in arrangements for children – views – substantial and significant time – therapeutic support |
| Family Law Act 1975 (Cth) ss 4AB(1), 4AB(2), 60B, 60CA, 60CC, 60CC(2)(b), 60CC(2A), 65DAA |
| Johnson & Page [2007] FamCA 1235 Alternative facts in the Courts, The Honourable Justice Stephen Gaegler AC, ALJ 93/7 |
| APPLICANT: | Mr Olivier |
| RESPONDENT: | Ms Olivier |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs McGregor |
| FILE NUMBER: | CAC | 1245 | of | 2017 |
| DATE DELIVERED: | 4 August 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 28 April – 5 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Haughton |
| SOLICITOR FOR THE APPLICANT: | Stanfords Solicitors & Mediators |
| SOLICITOR FOR THE RESPONDENT: | Evans Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid |
Orders
That all previous parenting orders made by the Court are discharged.
The parties shall have equally shared parental responsibility E, born … 2017, F, born … 2010, and G, born … 2014 ("the children").
In the exercise of their equally shared parental responsibility, the parents are to, within a period of 28 days from the making of these orders, discuss whether the children should be engaged in therapy including, but not limited to, play therapy as recommended by the Report writer.
Should the children be engaged in such therapy, then the parents may provide to the therapist a copy of this judgment.
The parents shall immediately do all acts and things necessary to facilitate the children attending a protective behaviours program such as AA Services or CC Services.
The children shall live with the Mother.
The children shall spend…
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- AGLC
- OLIVIER & OLIVIER [2020] FamCA 639
- Case
- [2020] FamCA 639
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific parenting orders to be made, discharging all previous orders. This involved establishing shared parental responsibility, outlining the children's living arrangements, detailing the time each parent would spend with the children during school terms and holidays, and setting out provisions for communication, changeovers, and special occasions like Father's Day and Mother's Day. The court also addressed the children's engagement in therapy and protective behaviours programs, as well as the discharge of an Independent Children's Lawyer.
Gill J ordered that all previous parenting orders be discharged. The parents were granted equally shared parental responsibility for the children. The children were to live with the Mother, and spend time with the Father as agreed in writing, or otherwise according to a specified schedule during school terms and holidays. The orders also mandated that the parents discuss the children's engagement in therapy, facilitate their attendance at a protective behaviours program, and ensure reasonable electronic communication between the children and the non-resident parent. Further provisions were made regarding changeovers, communication protocols, notification of emergencies, and the exchange of information with schools and medical practitioners. The Independent Children's Lawyer was discharged three weeks from the date of the orders, with provisions for the children to be made available to the ICL if requested.
Orders
Orders of the court
1.
That all previous parenting orders made by the Court are discharged.
2.
The parties shall have equally shared parental responsibility E, born … 2017, F, born … 2010, and G, born … 2014 ("the children").
3.
In the exercise of their equally shared parental responsibility, the parents are to, within a period of 28 days from the making of these orders, discuss whether the children should be engaged in therapy including, but not limited to, play therapy as recommended by the Report writer.
4.
Should the children be engaged in such therapy, then the parents may provide to the therapist a copy of this judgment.
5.
The parents shall immediately do all acts and things necessary to facilitate the children attending a protective behaviours program such as AA Services or CC Services.
6.
The children shall live with the Mother.
7.
The children shall spend time with the Father as agreed by the parties in writing and, failing agreement, during school term time for each alternate weekend from before school or 9 am Friday until before school or 9 am Wednesday, commencing on the first weekend of each term.
8.
The children shall spend school holiday with the Father as agreed by the parties in writing and, failing agreement, shall spend the school holidays with the parents as follows:
(a) with the Father for the first half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period where the holiday commences in an even-numbered year;
(b) with the Mother for the second half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period where the holiday commences in an even-numbered year;
(c) with the Mother for the first half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period where the holiday commences in an odd-numbered year;
(d) with the Father for the second half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period where the holiday commences in an odd numbered year;
9.
For the purpose of Order 8, the first half of the school holiday period shall be taken to commence after school on the last day of school term time and end at midday on the middle Saturday of the holiday period.
10.
For the purpose of Order 8, the second half of the school holiday period shall be taken to commence at midday on the middle Saturday of the holiday period and end at the recommencement of school the following term.
11.
In the event that Father's Day falls on a weekend that the children are otherwise spending time with the Mother, the Mother's time shall be suspended, and the children shall spend time with the Father from 9 am until 7 pm on Father's Day; and
12.
In the event that Mother's Day falls on a weekend that the children are otherwise spending time with the Father, unless otherwise agreed in writing, the Father's time shall be suspended and the children shall spend time with the Mother from 9 am until 7 pm on Mother's Day.
Changeover
13.
Unless otherwise agreed in writing:
(a) Changeover shall occur at the children's school by the parent delivering the children to school at the conclusion of their time and the other parent collecting the children from school at the commencement of their time; and
(b) In the event that the children are not in attendance at school, changeover shall occur at the McDonalds, E Town, HH Street.
Telephone Communication
14.
That the parents shall each have reasonable electronic communication with the children at times that the children are otherwise spending time with the other parent and shall facilitate the children communicating with the other parent at the request of the children.
15.
That each parent shall ensure the children's privacy when speaking with the other parent.
Miscellaneous
16.
That each party shall inform and keep the other informed of their current residential address and telephone number and in the event of any change to the address or telephone number, shall update the other party within forty-eight (48) hours of such a change occurring.
17.
That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that the children are not exposed to a third party making critical comments about the other party in the presence or hearing of the children.
18.
That in the case of a medical emergency where the child requires urgent medical attention or hospitalisation, the parent with care of the child at that time shall notify the other party as soon as reasonably practicable and not more than four (4) hours after the first point of contact with said medical practitioner.
19.
That each parent will promptly provide an authority to any school that the children are enrolled at, authorising the release of information to the other parent, including but not limited to, school reports, school photograph order forms, invitation and flyers to school events and that each parent is at liberty to attend events involving the children at school.
20.
That each parent will promptly provide to any medical practitioner treating any of the children an authority authorising the release of information to the other parent regarding the children’s medical treatment.
Discharge of ICL
21.
That the ICL is discharged 3 weeks from the date of these orders so that the ICL may, in her discretion, explain the effect of the orders to the children.
22.
Should the ICL request that the parents make the children available for this purpose then the parents are to comply with such 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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