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ORMANDY & MONTEITH

Case [2019] FamCA 728 11 October 2019

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FAMILY COURT OF AUSTRALIA

ORMANDY & MONTEITH

[2019] FamCA 728

FAMILY LAW – CHILD ABUSE – Sexual abuse – Where a child alleges that the father has sexually abused her – Where the father denies the allegations – Where the father has spent limited supervised time with the children following the allegations and no time with the child who made the allegations – Where the mother seeks a finding that sexual abuse occurred – Where the evidence does not meet the standard for a finding.

FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the mother seeks an order for sole parental responsibility – Where the father seeks equal shared parental responsibility – Where the relationship between the parties is one of mistrust and obvious dislike – Where the parties are not able to communicate – Orders.

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the mother promotes that there should be no contact between the father and the child who makes the sexual abuse allegation – Where the mother promotes that any time between the father and the other child should be limited to one weekend per month and that it should be supervised and subject to the wishes of that child – Where the father’s adult daughter is prepared to supervise contact and has the confidence of the mother – Where the father seeks time spending on each alternate weekend – Where the father presents as a risk to the children in his entrenched inability to compartmentalise his dislike and mistrust of the mother – Orders.

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 61DA(2), 61DA(4)

Baglio & Baglio [2013] FamCA 105
Beckham v Desprez [2015] FamCAFC 247
Blanding v Blanding [2016] FamCAFC 21
Briginshaw v. Briginshaw (1938) 60 CLR 336
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330 Nygh
Harridge & Harridge [2010] FamCA 445
Hunter & Berg [2017] FamCA 1051
M v M (1988) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
N & S & The Separate Representative (1996) FLC 92-655
Sigley & Evor [2011] FamCAFC 22
Vasser & J-Black (2007) FLC 93-329

APPLICANT:

Ms Ormandy

RESPONDENT:

Mr Monteith

FILE NUMBER:

ADC

170

2014

DATE DELIVERED:

11 October 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

29 July 2019 to 2 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Read

SOLICITOR FOR THE APPLICANT:

Adelaide Family Law

COUNSEL FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

That orders made on 10 April 2017 be discharged.
That the mother have sole parental responsibility for X born … 2007 and Y born … 2010 (collectively “the children”).
That the children live with the mother.
That X shall spend time with the father on one (1) occasion in each four (4) week period as may be agreed between the parties…

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

AGLC: ORMANDY & MONTEITH [2019] FamCA 728
Case: [2019] FamCA 728
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the Family Court of Australia, Berman J considered a dispute between a mother and father concerning their two children, X and Y. The mother sought a finding that the father had sexually abused X, while the father denied these allegations. The court also addressed issues of parental responsibility and the children's living arrangements and time spent with each parent.

The primary legal issues before the court were whether the evidence supported a finding of sexual abuse by the father, whether the presumption of equal shared parental responsibility should be displaced in favour of sole parental responsibility for the mother, and what arrangements for the children’s living arrangements and time with the father were in their best interests, given the significant mistrust and animosity between the parents.

Berman J found that the evidence presented did not meet the required standard of proof for a finding of sexual abuse. However, the court determined that the entrenched inability of the father to compartmentalise his dislike and mistrust of the mother, coupled with the parties' inability to communicate, warranted orders for sole parental responsibility for the mother. The court also made specific orders regarding the children's living arrangements and the father's supervised time with X, and unsupervised time with Y, subject to their wishes, with provisions for future unsupervised time for X upon reaching 13 years of age. The orders also included arrangements for the exchange of educational information and the father's ability to provide gifts and cards, subject to the mother's right to veto.

Orders

Orders of the court

That orders made on 10 April 2017 be discharged.

That the mother have sole parental responsibility for X born … 2007 and Y born … 2010 (collectively “the children”).

That the children live with the mother.

That X shall spend time with the father on one (1) occasion in each four (4) week period as may be agreed between the parties in writing but in default of agreement between the hours of 10.00 am and 4.00 pm on the fourth Saturday in each calendar month commencing 26 October 2019 up until X turns 13 years of age with such time to be supervised by Ms B or such other person as may be agreed between the parties in writing.

Such other time as X may wish NOTING that the father’s time with X shall be supervised by Ms B or such other person as may be agreed between the parties in writing.

When X turns 13 years of age she shall spend time with the father subject to her wishes with such time to be unsupervised.

That Y shall spend time with the father subject to her wishes.

That the mother shall cause the children’s school reports to be forwarded to the father and at his expense, school photographs and other information pertaining to the children’s education.

That the father be permitted to forward presents, gifts, cards and letters (subject to the right of the mother to veto same) in respect of the children’s birthdays, Christmas and appropriate academic achievement.

10.

The mother will forthwith advise the father of any serious medical or dental emergency pertaining to the children.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

ORMANDY & MONTEITH [2019] FamCA 728

Cases Citing This Decision

No citing cases yet.

Cases Cited

Hunter & Berg [2017] FamCA 1051
Citation 1 (Para 1)

…It is a serious matter to order that a child neither spend time with nor communicate with a parent. In Hunter & Berg [2017] FamCA 1051 Tree J said at [39]:- Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is ap…
Blanding & Blanding [2016] FamCAFC 21
Citation 2 (Para 3)

…Following the remarks of Finn J in Blanding v Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham v Desprez [2015] FamCAFC 247 there is now a focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act…
Beckham & Desprez [2015] FamCAFC 247
Citation 3 (Para 3)

…Following the remarks of Finn J in Blanding v Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham v Desprez [2015] FamCAFC 247 there is now a focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act t…
Reynolds v Reynolds [2011] NSWSC 83
Citation 4 (Para 4)

…In M v M (1988) 166 CLR 69 the High Court gave consideration to the treatment of allegations of sexual abuse. The High Court considered at [19] that treating an allegation of sexual abuse as the paramount consideration was an error and considered the circumstances in which a trial judge should make …
Sigley & Evor [2011] FamCAFC 22
Citation 5 (Para 5)

…In Sigley & Evor [2011] FamCAFC 22 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at page 83,513: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychologica…
Harridge & Harridge [2010] FamCA 445
Citation 6 (Para 4)

…In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (supra), and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:[14] (1) What harmful outcome is potentially present in this situation? (2) What is the probability of this o…
Mazorski & Albright [2007] FamCA 520
Citation 7 (Para 3)

…In Mazorski & Albright [2007] FamCA 520, Brown J considered the definition of “meaningful” and observed:- 26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “…
M v M [1988] HCA 68
Citation 8 (Para 4)

…In M v M (1988) 166 CLR 69 the High Court gave consideration to the treatment of allegations of sexual abuse. The High Court considered at [19] that treating an allegation of sexual abuse as the paramount consideration was an error and considered the circumstances in which a trial judge should make a finding of sexu…
J v Lieschke [1987] HCA 4
Citation 9 (Para 4)

…to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 CLR 447, at pp 450, 458, 462, 463-464. 21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancill…
Briginshaw v Briginshaw [1938] HCA 36
Citation 10 (Para 4)

…In M v M (1988) 166 CLR 69 the High Court gave consideration to the treatment of allegations of sexual abuse. The High Court considered at [19] that treating an allegation of sexual abuse as the paramount consideration was an error and considered the circumstances in which a trial judge should make …
Briginshaw v Briginshaw [1938] HCA 34
Citation 11 (Para 4)

…true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336, at p 362. There Dixon J. said: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gra…
Baglio & Baglio [2013] FamCA 105
Citation 12 (Para 6)

…As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.…
(1951) AC 352 (1951) AC 352
Citation 13 (Para 4)

…or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v. McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make…
McKee v McKee (1957) AC 352
Citation 14 (Para 4)

…In M v M (1988) 166 CLR 69 the High Court gave consideration to the treatment of allegations of sexual abuse. The High Court considered at [19] that treating an allegation of sexual abuse as the paramount consideration was an error and considered the circumstances in which a trial judge should make …

Legislation Cited

Family Law Act 1975 (Cth) 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2)...
10 mentions
Evidence Act 1995 (Cth)
1 mention (from Para 18)
Family Law Rules 2004 (Cth)
1 mention